FILED
SEPTEMBER 9, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31138-4-III Respondent, ) ) v. ) ) OPINION PUBLISHED MATTHEW DAVID LEONARD, ) IN PART ) Appellant. )
SIDDOWAY, C.J. -Matthew David Leonard was convicted following ajury trial
of second degree felony murder; the predicate felony alleged by the State was his second
degree assault ofthe 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(l )(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.
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. No. 31138-4-111 State v. Leonard
FACTS AND PROCEDURAL BACKGROUND
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.
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]fyou find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your duty to return a verdict of
guilty." Clerk's Papers at 130.
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.
No.31138-4-III State v. Leonard
ANALYSIS
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 (I) 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.
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 tum.
I History o/related challenges to Washington's second degree murder statute
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 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).
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).
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
No. 31138-4-III State v. Leonard
Wn.2d at 933. Washington's criminal laws were less 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 second degree murder charge. The Harris court found
"no reason" to adopt the merger rule "[i]n light of the distinctions made in our own
statutes." Id. at 932.
A decade later, our Supreme Court was asked in Thompson to reconsider adoption
of the merger rule. By the time of its 1977 decision, the Supreme Court acknowledged
that "[ mlost states which have considered the question have adopted the merger rule,
resulting in a holding that only felonies independent of the homicide can support a felony
murder conviction." Thompson, 88 Wn.2d at 17. Nonetheless, our Supreme Court
adhered to its decision rejecting the rule. The court pointed out that courts universally
regarded the question of merger as one of statutory interpretation rather than
constitutional right, and noted that the Washington legislature had taken no action to
modify the second degree murder statute in response to Harris's refusal to read a merger
concept into the statute.
Thompson had implicitly rejected a constitutional challenge to the second degree
murder statute, but that did not deter critics of felony murder from turning to the federal
and state constitutions as the next basis for attack. A strong dissent in Thompson had
concluded that second degree felony murder violated a defendant's right to substantive
No. 31138·4-111 State v. Leonard
due process by eliminating the requirement that the State must prove specific intent in
order to convict a defendant of a crime that it viewed as fundamentally malum in se. Id. at
24 (Utter, J., dissenting). It also found a violation of equal protection, reasoning that the
broad discretion vested in a prosecutor to charge similar defendants with more, or less,
serious crimes (with second degree murder or with manslaughter) "creates a possibility for
unequal treatment under the law which cannot pass constitutional muster." Id. at 27. A
year after Thompson, the constitutional arguments were presented again in State v.
Wanrow, 91 Wn.2d 301,306-10,588 P.2d 1320 (1978), which addressed them explicitly.
Wanrow rejected the constitutional arguments in the first instance as having been
rejected by the United States Supreme Court. As Wanrow explained, an appeal of right
under former 28 U.S.C. § 1257(2) (1970) had been taken from its decision in Thompson,
but was dismissed by the Supreme Court for want of a substantial federal question-a
dismissal that operated as a decision on the merits. I See Thompson, 434 U.S. 898. And
I Before 1988, a decision by a state court upholding a state statute against federal constitutional attack was within the United States Supreme Court's appellate jurisdiction under former 28 U.S.C. § 1257(2). As the Supreme Court explained in Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975), when presented with such an appeal, [W]e had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We are not obligated to grant the case plenary consideration ... but we were required to deal with its merits .... As Mr. Justice Brennan once observed, "[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case ...." Ohio ex reI. Eaton v. Price, 360 U.S. 246,
even if the United States Supreme Court's dismissal of the appeal of Thompson were not
controlling on the constitutional questions, the Wanrow court held that it, too, would
reject the constitutional challenges, "for we find no violation of due process or equal
protection in the felony-murder rule." 91 Wn.2d at 311. On the issue of equal protection,
the court explained:
Although the events giving rise to the prosecution of petitioner may support charges for varying crimes carrying varying punishments, the elements of those crimes are different. Proof of the elements of one does not constitute proof of the elements of another. Nor does it violate petitioner's right to equal protection that the prosecutor may choose to enforce one criminal statute against her and not another. The discretion vested in the prosecutor to selectively enforce criminal statutes is not unconstitutional if not based on unjustifiable standards.
Id. at 312.
Another decade passed before Clyde Dale Leech, having been convicted of second
degree felony murder for a fire fighter's death occurring in the furtherance of Leech's
arson, asked the Washington Supreme Court to reconsider its position that the felony
murder rule was unconstitutional-specifically, he asked the court to agree that his equal
protection rights were violated when he was charged with second degree felony murder
rather than manslaughter. State v. Leech, 114 Wn.2d 700, 712, 790 P.2d 160 (1990).
This time, a unanimous court declined to reconsider Wanrow and explained, again, that
247, 79 S. Ct. 978, 3 L. Ed. 2d 1200 (1959). (Some alterations in original.)
7 No. 31 I 38-4-Irr State v. Leonard
there is no equal protection violation when the crimes that the prosecuting attorney has
discretion to charge require proof of different elements. Id. at 711. In State v. Crane,
116 Wn.2d 315, 333,804 P.2d 10 (1991), when the defense yet again asked the court to
abandon the felony murder doctrine whereby assault is a predicate felony for second
degree murder; the court stated, "We have consistently refused this invitation and refuse
it once more."
It was over 20 years later, in Andress, that our Supreme Court relented and granted
a personal restraint petition that urged the court to reconsider whether assault can serve as
the predicate felony for second degree felony murder. In re Pers. Restraint ofAndress,
147 Wn.2d 602,56 P.3d 981 (2002). Having examined its prior decisions and concluded
that none had analyzed changes to the language of the murder statute when the criminal
code was substantially revised in 1975, the Andress court focused on the 1975 changes
and concluded that they suggested a modified legislative intent. At the time of the
Andress decision, the second degree murder statute provided:
"( 1) A person is guilty of murder in the second degree when: " "(b) He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(l)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants "
Id. at 608 (quoting former RCW 9A.32.050 (1976)).
No. 31138-4-II1 State v. Leonard
The Andress court concluded that the "in furtherance of' language made no sense
if applied where assault is the predicate felony, characterizing the "in furtherance of'
language as a "strong indication that the Legislature does not intend that assault should
serve as a predicate felony for second degree felony murder." Id. at 611. The court also
reviewed harsh results that follow from a prosecutor's discretion to charge second degree
felony murder based on assault, including that the jury will not be instructed on lesser
included or lesser degree offenses, and that the State may, depending on the
circumstances, be relieved of any burden to prove intent or any comparable mental state.
Together, the court held that the textual change to the statute and the "undue harshness"
of using assault as a predicate felony "persuades us that the Legislature did not intend
assault to serve as the predicate felony for second degree felony murder." Id at 615-16.
The legislature responded quickly by amending the second degree murder statute
to expressly include assault as a predicate offense to felony murder. LAWS OF 2003, ch 3,
§ 2. The 2003 legislation included the following statement of intent:
The legislature finds that the 1975 legislature clearly and unambiguously stated that any felony, including assault, can be a predicate offense for felony murder. The intent was evident: Punish, under the applicable murder statutes, those who commit a homicide in the course and in furtherance of a felony. This legislature reaffirms that original intent and further intends to honor and reinforce the court's decisions over the past twenty-eight years interpreting "in furtherance of' as requiring the death to be sufficiently close in time and proximity to the predicate felony. The legislature does not agree with or accept the court's findings of legislative intent in State v. Andress, Docket No. 71170-4 (October 24, 2002), and
reasserts that assault has always been and still remains a predicate offense for felony murder in the second degree.
LAWS OF 2003, ch. 3, § 1.
With that introduction, we tum to Mr. Leonard's challenges.
A. Equal Protection
Mr. Leonard's argument that the second degree felony murder statute violates his
equal protection rights is indistinguishable from the equal protection arguments rejected
by the Washington Supreme Court for a half century in Thompson, Wanrow, and Crane,
and by the United States Supreme Court's dismissal of the appeal of Thompson.
Here is Mr. Leonard's statement of the argument:
Mr. Leonard is in a class of defendants who commit second degree assault which results in death. Under the statutes, the prosecution was given the astounding choice of charging such persons with either second degree felony murder or the much lesser crime of manslaughter. . .. Yet there is absolutely no distinction between the people who would be subject to the far disparate punishments and higher crimes, save for the prosecutor's unfettered discretion. The complete lack of any standards for treating similarly situated defendants who commit exactly the same acts so differently cannot possibly serve any legitimate state objective.
Br. of Appellant at 12.
Compare the position of the dissent in Thompson, implicitly rejected by the
Thompson majority:
In this instance, on the basis of proof of precisely the same acts on the part of the defendant (i.e., the shooting of the decedent resulting in his unintended death), the prosecutor was free at his discretion to charge assault in the second degree, or manslaughter, or murder in the second
No. 31138-4-111 State v. Leonard
degree. . .. Thus the prosecutor could, by proving precisely the same facts, subject the defendant to substantially different penalties based upon varying proofs, depending upon his own judgment as to the appropriate charge. The broad discretion which results in this instance creates a possibility for unequal treatment under the law which cannot pass constitutional muster.
88 Wn.2d at 27 (Utter, J., dissenting).
As pointed out in Wanrow, the position implicitly rejected by the Washington
Supreme Court in Thompson was the same position rejected by the United States
Supreme Court as presenting no substantial federal question. The Wanrow court went on
to explain that even if it were not bound by the United States Supreme Court's rejection
of the equal protection argument, it could see no violation of equal protection either, for
"no constitutional defect exists when the crimes which the prosecutor has discretion to
charge have different elements," adding, "That is the case here." Wanrow, 91 Wn.2d at
312.
As was the case in Wanrow, the statutes in effect at the time ofMr. Leonard's
crime required proof of different elements for second degree felony murder and
manslaughter. To prove second degree felony murder, the State was required to prove
that Mr. Leonard engaged in a felony (that he assaulted Mr. Linder with a deadly
weapon) resulting in his death, whereas manslaughter in the second degree would have
required proof that he was criminally negligent and that Mr. Linder's death resulted from
his negligent acts. Because the charges that the prosecutor had discretion to bring
required proof of different elements, there is no equal protection violation under clearly
controlling United States Supreme Court and Washington Supreme Court precedents. 2
B. Construction ofRCW 9A.32. 050
Mr. Leonard also argues that despite the legislature's 2003 amendment ofRCW
9A.32.050 to explicitly identify assault as a predicate felony to second degree felony
murder, the new language "does not declare whether it applies to all assaults or only
those which are separate from the act which causes the death." Br. of Appellant at 8. He
argues that the ambiguity that concerned the Supreme Court in Andress remains, because
the amended statute retains the "in furtherance of' language. He urges us to apply the
rule oflenity and construe RCW 9A.32.050(1)(b) to allow assault to serve as the
predicate felony only where the assault is not the act that causes the death.
2The defendants in Thompson, Wanrow, and Crane were all charged under the 1909 version of the second degree felony murder statute. As the State points out, the Court of Appeals has continued to reject equal protection challenges raised under later versions of the statute. See State v. Gilmer, 96 Wn. App. 875,981 P.2d 902 (1999); State v. Goodrich, 72 Wn. App. 71, 79, 863 P.2d 599 (1993); State v. Armstrong, 143 Wn. App. 333,178 P.3d 1048 (2008); State v. Gordon, 153 Wn. App. 516, 223 P.3d 519 (2009), rev'd on other grounds, 172 Wn.2d 671,260 P.3d 884 (2011). We do not view the constitutional issue as turning on the language of past versions or possibly future versions of the second degree murder statute, but as turning, instead, on the existence of prosecutorial discretion to charge the more harshly punished crime of second degree felony murder or to charge manslaughter, with its distinguishable elements. Thus viewed, Mr. Leonard presents the same issue as was decided under the Washington Supreme Court and United States Supreme Court decisions that we treat as controlling.
Division 'One of this court rejected the argument advanced by Mr. Leonard in State
v. Gordon, 153 Wn. App. 516, 527-29, 223 P.3d 519 (2009), rev'd on other grounds, 172
Wn.2d 671, 260 P.3d 884 (2011). Mr. Leonard asks us to disregard Gordon, contending
that it (1) ignores the legislature's stated intent as to the meaning of "in furtherance of';
(2) ignores the holding in In re Personal Restraint ofBowman, 162 Wn.2d 325, 331, 172
P.3d 681 (2007) that the felony murder scheme is intended to apply "when the underlying
felony is distinct from, yet related to, the homicidal act"; and (3) fails to apply the rule of
lenity.
As amended, the statute states in relevant part:
A person is guilty of murder in the second degree when:
(b) He or she commits or attempts to commit any felony, including assault . .. and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death ofa person other than one of the participants.
RCW 9A.32.050 (emphasis added). "For a statute to be ambiguous, two reasonable
interpretations must arise from the language of the statute itself, not from considerations
outside the statute." Cerrillo v. Esparza, 158 Wn.2d 194,203-04, 142 P.3d 155 (2006).
We agree with Gordon that following the 2003 amendment, the language is
unambiguous; there is nothing in the statute itself that leaves us wondering if"any felony
including assault" means "any felony including those assaults that are not the act causing
death."
13 No. 31138-4-II1 State v. Leonard
Retention of the "in furtherance of' language is not enough to create an ambiguity.
Mr. Leonard fails to consider that even Andress did not rely on its concern about that
language alone to find an ambiguity-it relied on that language "[i]n conjunction" with
its conclusion that the legislature would not have intended the undue harshness resulting
from including assault as a predicate felony. Andress, 147 Wn.2d at 615. With its
explicit inclusion of assault and its statement of intent, the 2003 legislature pointedly
answered both of the Andress court's concerns.
The language from Bowman, as a consideration outside the statute, cannot create
an ambiguity. Moreover, in Bowman the court was applying the second degree murder
statute in effect prior to 2003, as construed in Andress. We are dealing with the amended
statute. Following the 2003 amendment, it can no longer fairly be said that Washington's
felony murder statute is intended to apply only when the underlying felony is distinct
from the homicidal act.
Because the statute is unambiguous, we do not reach the lenity issue. City of
Aberdeen v. Regan, 170 Wn.2d 103, 106,239 P.3d 1102 (2010).
C. Reconsideration ofthe Merger Rule
Finally, Mr. Leonard argues that it is time for Washington to reconsider its "ill
conceived notion" of refusing to adopt the merger rule for felony murder with an
underlying assault. Br. of Appellant at 15. The Washington Supreme Court rejected
adoption of the merger rule in Harris, and, as noted in Wanrow, "treated the matter as
settled in State v. Roberts, 88 Wn.2d 337,344 nA, 562 P.2d 1259 (1977)." 91 Wn.2d at
302-03. Decades later, Andress held that assault was not a predicate felony under the
statute as amended in 1975, but Andress was decided as a matter of statutory construction
and relied in part on the "in furtherance of' language added by the 1975 changes to the
criminal code. Our Supreme Court has never overruled its decisions refusing to adopt the
merger rule. On the issue of whether Washington applies the merger rule to felony
murder, Harris, Roberts, and Wanrow are binding on all lower courts in the state; were
we to fail to follow directly controlling Supreme Court authority, we would err. 1000
Virginia Ltd P'ship v. Vertecs Corp., 158 Wn.2d 566,578, 146 P.3d 423 (2006). We
decline the invitation to reconsider our Supreme Court's rejection of the merger rule.
Affirmed.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with the rules governing unpublished opinions. RCW
2.06.040.
II The to-convict instruction andfindings re LFOs
In State v. Wilson, 176 Wn. App. 147, 151,307 P.3d 823 (2013), review denied,
179 Wn.2d 1012 (2014), the court agreed with the reasoning of State v. Brown, 130 Wn.
App. 767, 770-71, 124 P.3d 663 (2005) and State v. Meggyesy, 90 Wn. App. 693, 696,
958 P .2d 319 (1998), abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156,
110 P.3d 188 (2005), rev'd, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), that
the kind of to-convict instruction Mr. Leonard argues should have been given in his case
is equivalent to notifying the jury of its power to acquit against the evidence, and that a
defendant is not entitled to a jury nullification instruction. Our division, like both other
divisions of the Court of Appeals, has held that a criminal defendant's right to a jury trial
is not violated by the pattern to-convict instruction that was given in Mr. Leonard's case.
The court did not err in giving the instruction.
In State v. Duncan, 180 Wn. App. 245, 253,327 P.3d 699, petition for review
flied, No. 90188-1 (April 30, 2014), we observed that whether a defendant will be
perpetually unable to pay LFOs imposed at sentencing is not an issue that defendants
overlook, it is one that they reasonably waive, and concluded that we would henceforth
decline to address a challenge to a court's findings on that issue if raised for the first time
on appeal. RAP 2.5(a). Our position is consistent with that of the other divisions of our
court. See State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178
Wn.2d 1010 (2013) and State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08, petition
for review flied, No. 89518-0 (Nov. 12,2013). The record in Mr. Leonard's case does
not affirmatively show an inability to pay LFOs now or in the near future, as was the case
in State v. Bertrand, 165 Wn. App. 393, 267 P.3d 511 (2011). Mr. Leonard did not
object to the findings in the trial court and thereby waived any challenge.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Leonard raises six. We
address them in turn.
Admission ofevidence. Mr. Leonard contends the trial court erred by allowing a
knife to be admitted into evidence. The knife had been found during the execution of a
search warrant for Mr. Leonard's car. It was found in a purse in the front seat. Mr.
Leonard argues that the knife, which his sister testified belonged to her and had remained
in her purse the entire evening, was unrelated to the crime and was prejudicial. SAG at
2-3.
The defense raised no objection when the State moved to admit and publish the
knife. A party must timely object to the introduction of evidence in order to preserve the
alleged evidentiary error for appeal. State v. Davis, 141 Wn.2d 798,849-50, 10 P.3d 977
(2000). Because no objection was made in the trial court, error, if there was any, was not
preserved.
Prosecutorial misconduct. Mr. Leonard contends that the prosecutor committed
prosecutorial misconduct when he commented on evidence that was neither authenticated
nor tested, used inflammatory comments and arguments not supported by the evidence,
and appealed to the jury's passion and prejudice during closing. To succeed on a claim
of prosecutorial misconduct a defendant must demonstrate that the comment was both
improper and prejudicial. While Mr. Leonard sets forth a number of statements made by
the prosecutor, he does not explain, with respect to any statement, why he believes it
constituted misconduct or how it prejudiced him. His argument is insufficiently stated
for us to consider it. RAP 1O.10(c).
Ineffective assistance. Mr. Leonard argues he was denied effective assistance of
counsel when his lawyer failed to object to the State's offer of the knife in evidence and
when his lawyer did not request instruction on excusable homicide. To succeed on a
claim of ineffective assistance, Mr. Leonard must show that counsel's performance was
both deficient and the deficient performance prejudiced him.
Mr. Leonard fails to identify what objection his lawyer should have made to
admission of the knife and why the objection was likely to have been sustained. His
statement of the ground is again insufficient under RAP 10.10(c).
As to Mr. Leonard's complaint that the jury was not instructed on excusable
homicide, "[h]omicide is excusable when committed by accident or misfortune in doing
any lawful act by lawful means, without criminal negligence, or without any unlawful
intent." RCW 9A.16.030. Comments to the Washington pattemjury instruction on
excusable homicide point out that "[u]nlike other defenses, the 'defense' of excusable
homicide adds little if anything to the jury's analysis," and "[i]n many cases, an
instruction on excusable homicide will confuse the jury without providing any
meaningful guidance." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 15.01, at 228 (3d ed. 2008). In Mr. Leonard's case, the State
18 No. 31138-4-III State v. Leonard
bore the burden of proving an intentional act for intentional murder, an unlawful assault
for felony murder, and criminal negligence for first degree manslaughter. Mr. Leonard
fails to demonstrate why his counsel was ineffective for failing to request an instruction
that added nothing and might be misunderstood by the jury to impose a burden of proof
on the defense.
"State did not appraise defendant on common law assault to properly defend
against." SAG at 14 (capitalization omitted). Mr. Leonard's statement of this ground is
incomprehensible. We are unable to address it.
Insufficient evidence. Mr. Leonard contends that the State presented insufficient
evidence that he was guilty of assault in the second degree and second degree felony
murder. Mr. Leonard testified that he stabbed Mr. Linder and explained his actions as in
protection of his sister. Other evidence suggested that Mr. Leonard was the aggressor.
The evidence was clearly sufficient.
~~.~}= Siddoway, C.J.
WE CONCUR:
~)& Brown, J.
Fe'.n~?d 1 J. 19