Goodloe, J.
In this case, we review the sufficiency of the evidence of the premeditation element in an aggravated first degree murder conviction. The Court of Appeals found the evidence insufficient and reversed and remanded for resentencing for second degree murder. State v. Bingham, 40 Wn. App. 553, 699 P.2d 262 (1985). We affirm the Court of Appeals decision.
On February 18, 1982, the raped and strangled body of Leslie Cook, a retarded adult, was found in a pasture in Sequim. Cook was last seen alive on February 15, 1982, with respondent Charles Dean Bingham. The Clallam County Prosecutor, by amended information, charged Bingham with aggravated first degree (premeditated) murder, rape being the aggravating circumstance. The prosecutor also notified Bingham that the State would seek the death penalty.
The evidence presented at trial showed that on February 15, Cook and Bingham got off a bus together in Sequim about 6 p.m. There was no evidence that they knew each other before this time. They visited a grocery store and two residences. Cook was last seen at the residence of Wayne Humphrey and Enid Pratt where Bingham asked for a ride back to Port Angeles. When he was told no, Bingham said they would hitchhike. They left together heading toward the infrequently traveled Old Olympic Highway. None of the witnesses who saw the two heard any argument or observed any physical contact between them. Three days later, Cook's body was found in a field about a quarter mile from the Humphrey-Pratt residence.
At trial, King County Medical Examiner Reay described [822]*822the results of the autopsy he performed on Cook's body. The cause of death was "asphyxiation through manual strangulation", accomplished by applying continuous pressure to the windpipe for approximately 3 to 5 minutes. Report of Proceedings (10/18/82), at 14. Cook had a bruise on her upper lip, more likely caused by a hand being pressed over her mouth than by a violent blow. Tears were found in Cook's vaginal wall and anal ring. Spermatozoa were present. These injuries were inflicted antemortem. Also, there was a bite mark on each of Cook's breasts. Reay testified that these occurred perimortem or postmortem.
Two forensic odontologists testified that the bite mark on one breast matched Bingham's teeth. No conclusive determination could be made with respect to the other bite mark.
The prosecutor's theory, as revealed in both his opening statement and closing argument, was that Bingham wanted to have sex with Cook and that he had to kill her in order to do so. The prosecutor hypothesized that Bingham had started the act while Cook was alive, and that he put his hand over her mouth and then strangled her in order to complete the act. The prosecutor also told the jury that the murder would be premeditated if Bingham had formed the intent to kill when he began to strangle Cook, and thought about that intent for the 3 to 5 minutes it took her to die.
The court instructed the jury on aggravated first degree murder and on the lesser included offenses of first and second degree murder and first degree manslaughter. The court also gave Bingham's proposed instruction on voluntary intoxication.
The jury found Bingham guilty of aggravated first degree murder. The jury also found, in the penalty phase, that the State had failed to prove that there were insufficient mitigating circumstances to warrant leniency. The trial court therefore sentenced Bingham to life imprisonment without the possibility of release or parole.
Bingham sought direct review by this court. We transferred the case to Division Two of the Court of Appeals. [823]*823The Court of Appeals reversed Bingham's conviction in a split decision and remanded for resentencing for second degree murder. State v. Bingham, supra. The State sought and was granted discretionary review.
We must determine whether evidence of premeditation was sufficiently demonstrated in order for the issue to go to the jury and in order to sustain a finding of premeditated killing.
The constitutional standard for reviewing the sufficiency of the evidence in a criminal case is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). The element challenged in this case is "premeditated intent".
Bingham was charged with first degree murder pursuant to RCW 9A.32.030(l)(a), which requires for conviction "a premeditated intent to cause the death of another". The element of premeditation distinguishes first and second degree murder. State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982). Section (l)(a) of the second degree murder statute, RCW 9A.32.050, requires for conviction "intent to cause the death of another person but without premeditation".
The only statutory elaboration on the meaning of premeditation is found in RCW 9A.32.020(1), which states that premeditation "must involve more than a moment in point of time." Washington case law further defines premeditation as "the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short." (Footnote omitted.) Brooks, at 876. We recently approved an instruction which defined premeditation as "the deliberate formation of and reflection upon the intent to take a human life." State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982).
Premeditation may be shown by direct or circumstantial [824]*824evidence. Circumstantial evidence can'be used where the inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict is substantial. State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977). In this case, the State presented no direct evidence. The issue thus becomes whether sufficient circumstantial evidence of premeditation was presented. Bingham was not charged with felony murder.
To show premeditation, the State relied on the pathologist's testimony that manual strangulation takes 3 to 5 minutes. The State argues this time is an appreciable amount of time in which Bingham could have deliberated. Bingham argues that time alone is not enough and that other indicators of premeditation must be shown.
One case, State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975), aff'd, 88 Wn.2d 127, 559 P.2d 970, cert. denied, 434 U.S. 876 (1977), was relied heavily upon by the parties, the trial court and the Court of Appeals. In Smith,
Free access — add to your briefcase to read the full text and ask questions with AI
Goodloe, J.
In this case, we review the sufficiency of the evidence of the premeditation element in an aggravated first degree murder conviction. The Court of Appeals found the evidence insufficient and reversed and remanded for resentencing for second degree murder. State v. Bingham, 40 Wn. App. 553, 699 P.2d 262 (1985). We affirm the Court of Appeals decision.
On February 18, 1982, the raped and strangled body of Leslie Cook, a retarded adult, was found in a pasture in Sequim. Cook was last seen alive on February 15, 1982, with respondent Charles Dean Bingham. The Clallam County Prosecutor, by amended information, charged Bingham with aggravated first degree (premeditated) murder, rape being the aggravating circumstance. The prosecutor also notified Bingham that the State would seek the death penalty.
The evidence presented at trial showed that on February 15, Cook and Bingham got off a bus together in Sequim about 6 p.m. There was no evidence that they knew each other before this time. They visited a grocery store and two residences. Cook was last seen at the residence of Wayne Humphrey and Enid Pratt where Bingham asked for a ride back to Port Angeles. When he was told no, Bingham said they would hitchhike. They left together heading toward the infrequently traveled Old Olympic Highway. None of the witnesses who saw the two heard any argument or observed any physical contact between them. Three days later, Cook's body was found in a field about a quarter mile from the Humphrey-Pratt residence.
At trial, King County Medical Examiner Reay described [822]*822the results of the autopsy he performed on Cook's body. The cause of death was "asphyxiation through manual strangulation", accomplished by applying continuous pressure to the windpipe for approximately 3 to 5 minutes. Report of Proceedings (10/18/82), at 14. Cook had a bruise on her upper lip, more likely caused by a hand being pressed over her mouth than by a violent blow. Tears were found in Cook's vaginal wall and anal ring. Spermatozoa were present. These injuries were inflicted antemortem. Also, there was a bite mark on each of Cook's breasts. Reay testified that these occurred perimortem or postmortem.
Two forensic odontologists testified that the bite mark on one breast matched Bingham's teeth. No conclusive determination could be made with respect to the other bite mark.
The prosecutor's theory, as revealed in both his opening statement and closing argument, was that Bingham wanted to have sex with Cook and that he had to kill her in order to do so. The prosecutor hypothesized that Bingham had started the act while Cook was alive, and that he put his hand over her mouth and then strangled her in order to complete the act. The prosecutor also told the jury that the murder would be premeditated if Bingham had formed the intent to kill when he began to strangle Cook, and thought about that intent for the 3 to 5 minutes it took her to die.
The court instructed the jury on aggravated first degree murder and on the lesser included offenses of first and second degree murder and first degree manslaughter. The court also gave Bingham's proposed instruction on voluntary intoxication.
The jury found Bingham guilty of aggravated first degree murder. The jury also found, in the penalty phase, that the State had failed to prove that there were insufficient mitigating circumstances to warrant leniency. The trial court therefore sentenced Bingham to life imprisonment without the possibility of release or parole.
Bingham sought direct review by this court. We transferred the case to Division Two of the Court of Appeals. [823]*823The Court of Appeals reversed Bingham's conviction in a split decision and remanded for resentencing for second degree murder. State v. Bingham, supra. The State sought and was granted discretionary review.
We must determine whether evidence of premeditation was sufficiently demonstrated in order for the issue to go to the jury and in order to sustain a finding of premeditated killing.
The constitutional standard for reviewing the sufficiency of the evidence in a criminal case is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). The element challenged in this case is "premeditated intent".
Bingham was charged with first degree murder pursuant to RCW 9A.32.030(l)(a), which requires for conviction "a premeditated intent to cause the death of another". The element of premeditation distinguishes first and second degree murder. State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982). Section (l)(a) of the second degree murder statute, RCW 9A.32.050, requires for conviction "intent to cause the death of another person but without premeditation".
The only statutory elaboration on the meaning of premeditation is found in RCW 9A.32.020(1), which states that premeditation "must involve more than a moment in point of time." Washington case law further defines premeditation as "the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short." (Footnote omitted.) Brooks, at 876. We recently approved an instruction which defined premeditation as "the deliberate formation of and reflection upon the intent to take a human life." State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982).
Premeditation may be shown by direct or circumstantial [824]*824evidence. Circumstantial evidence can'be used where the inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict is substantial. State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977). In this case, the State presented no direct evidence. The issue thus becomes whether sufficient circumstantial evidence of premeditation was presented. Bingham was not charged with felony murder.
To show premeditation, the State relied on the pathologist's testimony that manual strangulation takes 3 to 5 minutes. The State argues this time is an appreciable amount of time in which Bingham could have deliberated. Bingham argues that time alone is not enough and that other indicators of premeditation must be shown.
One case, State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975), aff'd, 88 Wn.2d 127, 559 P.2d 970, cert. denied, 434 U.S. 876 (1977), was relied heavily upon by the parties, the trial court and the Court of Appeals. In Smith, the defendant was convicted of the premeditated first degree murder of his son. The facts showed that the defendant took his son for a midnight walk by a creek near his house. The next morning he returned home alone and disoriented. The boy's body was found in the river. He had been drowned.
The entire Smith discussion on premeditation is as follows:
Premeditation. Although no definite motive was proven, the jury was presented with substantial evidence of the existence of premeditation. The Smiths had discussed separation, though at the time of the incident had decided not to do so. They had concluded, however, that if they separated, Kathy Smith would receive custody of the children. For premeditation to be inferable by the jury, there must have been a period of time during which the intent to kill is deliberated. This time may be very short provided it is an "appreciable period of time." State v. Shirley, 60 Wn.2d 277, 279, 373 P.2d 777 (1962); State v. Ross, 56 Wn.2d 344, 351, 353 P.2d 885 (1960); State v. Tikka, 8 Wn. App. 736, 740, 509 P.2d 101 (1973). Looking at the circumstances surrounding the child's death, it is clear that an appreciable period of time did [825]*825elapse. As recognized by our State Supreme Court, choking takes an appreciable time. State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963); State v. Gaines, 144 Wash. 446, 258 P. 508 (1927), cert. denied, 277 U.S. 81, 72 L. Ed. 793, 48 S. Ct. 468 (1928).
(Italics ours.) Smith, at 732-33.
The Court of Appeals majority overruled Smith to the extent that it held premeditation can be shown by only evidence of choking because choking takes an appreciable amount of time. The Smith facts could also be found to reflect a deliberated decision to kill the child by holding the child's head under water.
A review of the two cases cited in Smith for the proposition that choking takes an appreciable amount of time also shows that more than choking was involved in those cases. In both State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963) and State v. Gaines, 144 Wash. 446, 258 P. 508 (1927), cert. denied, 277 U.S. 81, 72 L. Ed. 793, 48 S. Ct. 468 (1928), the facts show that the injuries were inflicted by various means over some period of time. In Harris, the victim
had been struck on the head several times with a blunt instrument with such force that in one place her skull had been fractured into her brain. Also, additional blows had severely damaged one ear and cheek and fractured her jaw, breaking two teeth. After this terrific beating, her assailant, while she was still alive, tied the vacuum cleaner cord around her neck and strangled her, which was the immediate cause of her death . . .
(Italics ours.) Harris, at 868. In Gaines,
the deceased was first choked into insensibility to an extent which could have produced death. A choking, to have this effect, takes some appreciable time. After the deceased was choked into insensibility, her assailant went to a garbage dump nearby, got a rock, returned and inflicted the wounds upon the head. It cannot be held, under the facts and circumstances of this case, that there was no evidence from which the jury had a right to find deliberation or premeditation.
(Italics ours.) Gaines, at 467.
We find all of these cases, while helpful in under[826]*826standing the premeditation element, are not determinative of whether manual strangulation alone is sufficient. We agree with the Court of Appeals majority that to allow a finding of premeditation only because the act takes an appreciable amount of time obliterates the distinction between first and second degree murder. Having the opportunity to deliberate is not evidence the defendant did deliberate, which is necessary for a finding of premeditation. Otherwise, any form of killing which took more than a moment could result in a finding of premeditation, without some additional evidence showing reflection. Holding a hand over someone's mouth or windpipe does not necessarily reflect a decision to kill the person, but possibly only to quiet her or him. Furthermore, here a question of the ability to deliberate or reflect while engaged in sexual activity exists.
The position of the State and the Court of Appeals dissent appears to be that, if the defendant has the opportunity to deliberate and chooses not to cease his actions, then it is proper to allow the jury to infer deliberation. They offer three cases for the proposition that premeditation may properly be inferred from evidence of the lapse of time to death. State v. Harris, supra; State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979); State v. Luoma, supra. While Harris, Griffith, and Luoma do use language regarding reliance on circumstances of the crime to show premeditation, the circumstances showed more action or thought than mere infliction of the fatal act.
In Harris, the assailant, after inflicting a terrific head beating, tied a vacuum cleaner cord around the victim's neck and strangled her. Harris, at 868. The interim time period between the beating and the strangulation, as well as the presence and use of a vacuum cleaner cord in effectuating the victim's death distinguish this case from the manual strangulation situation with which we are presented.
In Griffith, some children were hitting a basketball against the house where defendant lived with his mother. The defendant took the ball from the children. He went to [827]*827his car, got a gun, and placed it on a table next to the front door. Within 5 minutes, two adults went to the house to retrieve the ball. The defendant, while talking to the adults at the front door, reached for the gun, pointed it at the adults, and shot one of them. The court said:
Although the period of time in which these events transpired was approximately 5 minutes, there was sufficient evidence from which the jury could have found that the defendant formulated an intent and deliberated upon it prior to the shooting.
Griffith, at 577. The planned presence of a weapon necessary to facilitate a killing has been held to be adequate evidence to allow the issue of premeditation to go to the jury. State v. Tikka, 8 Wn. App. 736, 509 P.2d 101 (1973).
In Luoma, the defendant transported the victim to the crime scene, took her down a bank, positioned her and then crushed her head with a large rock. From the facts in Luoma, "[t]he jury could properly conclude that the death was not the result of an impulsive, spontaneous act." Luoma, at 34. We note that the language in Luoma focuses on intent, not premeditation. As is clear from the statutory requirements and State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982), premeditation is a separate and additional element to the intent requirement for first degree murder.
Here, no evidence was presented of deliberation or reflection before or during the strangulation, only the strangulation. The opportunity to deliberate is not sufficient.
As was recognized in Austin v. United States, 382 F.2d 129, 138-39 (D.C. Cir. 1967):
The facts of a savage murder generate a powerful drive, almost a juggernaut for jurors, and indeed for judges, to crush the crime with the utmost condemnation available, to seize whatever words or terms reflect maximum denunciation, to cry out murder "in the first degree." But it is the task and conscience of a judge to transcend emotional momentum with reflective analysis. The judge is aware that many murders most brutish and bestial are committed in a consuming frenzy or heat of [828]*828passion, and that these are in law only murder in the second degree. The [State's] evidence suffice[s] to establish an intentional and horrible murder — the kind that could be committed in a frenzy or heat of passion. However the core responsibility of the court requires it to reflect on the sufficiency of the [State's] case.
Exercising our responsibility, we find manual strangulation alone is insufficient evidence to support a finding of premeditation. We affirm the Court of Appeals decision.
Dolliver, C.J., and Utter, Brachtenbach, and Pearson, JJ., concur.