State v. Green

588 P.2d 1370, 91 Wash. 2d 431, 1979 Wash. LEXIS 1152

• Court: Washington Supreme Court
• Decided: January 5, 1979
• Docket: 44705
• Status: Published

Opinions

Hamilton, J.

This is a direct appeal by a defendant convicted of aggravated murder and sentenced to death. We affirm the conviction but remand for reimposition of sentence.

The appellant Green was charged with the murder of an 8 1/2-year-old girl, Kelly. The factual setting as necessary to an understanding of the issues may be described briefly.

In the early evening of September 28, 1976, Kelly took a younger child for a short walk along an alleyway adjacent to an apartment house in the Capitol Hill area of Seattle. Approximately 10 minutes after the two children left for the walk, screams were heard by adults within and without the apartment house. Then, another youngster reported Kelly was injured. The mother of the child who had been with Kelly investigated; when she did she observed her child in the alleyway unharmed, standing near a pool of blood. A butcher knife was nearby. Picking up her child, she went to look for Kelly.

Meanwhile, a resident of an apartment who had heard the screams looked outside. From a vantage point on the balcony of his apartment, he could see two figures huddled in the alleyway directly below. He recognized Kelly. The other figure, an adult, lifted Kelly up off the ground. She was kicking and screaming. This witness also observed the individual place his hand over her mouth in an apparent effort to muffle the noise she was making.

Within moments, Kelly was carried out of the witness' sight as the individual holding her turned the corner of the building. A few seconds later, the witness exited his apartment, ran downstairs, and observed the appellant who was now located in a recessed stairwell at the rear of the apartment house. He was holding Kelly. Appellant's clothes were covered with blood; Kelly's were ripped away from her body. She was pale and quiet. He asked appellant what he could do to help and was requested to call an ambulance. As he did so, appellant took Kelly's body to the apartment lawn where he set it down.

Shortly thereafter, the police arrived on the scene and spoke with appellant. He gave the police a description of a person he claimed to have observed assaulting Kelly. The description was broadcast by the police and a search of the general vicinity was initiated. In addition, appellant explained why he moved the body onto the lawn. As yet, appellant had not been identified as the person in the alley with Kelly.

The officers transported appellant to the police station in order to obtain his statement. Appellant went along without objection. While appellant was at the station, the on-the-scene investigation continued. Another witness, a 13-year-old boy, carne forward and provided a new description of Kelly's assailant. This new description closely matched appellant's.

Meanwhile, a detective had obtained appellant's statement, which included an unusually minute description of the person appellant asserted he observed assaulting Kelly. After the statement was completed, the detective asked appellant to remove his clothing so the blood on it could be typed. When appellant did so, the detective noticed blood on his undershorts, a spot too large, he thought, to have soaked through appellant's pants. At approximately the same moment, word reached the detective that a witness had described appellant as the individual who was struggling with Kelly in the alley. Only then was appellant advised of his Miranda rights and arrested. He was charged with aggravated murder.

At trial, the State's theory was that appellant stabbed Kelly, killing her in the course of kidnapping or rape. At the close of the State's case, appellant made several motions to dismiss, which the court denied. He then rested. The jury returned a verdict of guilty, and under Washington law the death penalty was mandatorily imposed.

Appellant argues: I. The court should have suppressed his statement to the detective as it was the product of a custodial interrogation conducted without prior Miranda warnings; II. The trial court should have granted his motion to dismiss the information, as the statutory scheme created by RCW 9A.32.030(1) (c)(2) and (5) and RGW 9A.32.045(7) violates equal protection; III. The trial court erred by permitting the jury to convict if it found the killing occurred in the course of rape or kidnapping; IV. The mandatory death penalty is unconstitutional.

I

Appellant argues the statement he gave to the Seattle police detective should have been suppressed since it was the product of custodial interrogation conducted without prior advice of rights. Miranda v. Arizona, 384 U.S. , 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). He argues custodial interrogation should include all station house questioning, relying on State v. Creach, 77 Wn.2d 194, 461 P.2d 329 (1969), and State v. Vining, 2 Wn. App. 802, 472 P.2d 564, 53 A.L.R.3d 390 (1970).

In Creach, the defendant was asked to step outside a hotel and answer some questions. The issue was admissibility of the statements made in response to those questions. We held the statements were admissible because the questioning was during the course of a routine investigation. Although we quoted from United States v. Gibson, 392 F.2d 373 (4th Cir. 1968), we did not adopt the view expressed therein that station house questioning is per se custodial interrogation as suggested in State v. Vining, supra at 806.

In Creach, and recently in State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977), we recognized the difficulty inherent in establishing an all-inclusive rule by which to judge the need for Miranda warnings, but we held that:

[Ojnce an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence. At that point, interrogation becomes custodial, and the suspect must be warned of his rights.

(Italics ours.) State v. Creach, supra at 198, quoted with approval in State v. Hilliard, supra at 435.

Probable cause to arrest arises when there is reasonable ground for suspicion, supported by circumstances within the knowledge of the arresting officer, which would warrant a cautious person's belief that the individual is guilty of a crime. State v. Hilliard, supra; State v. Parker, 79 Wn.2d 326, 485 P.2d 60 (1971). Thus, mere suspicion before the facts are reasonably developed is not enough to turn routine investigatorial questioning of a witness into a custodial interrogation. State v. Hilliard, supra; see Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (per curiam).

Appellant gave a statement to police without being advised of his rights under Miranda. At the time he did so, he was located at a police station; however, there is no evidence to indicate his presence there was involuntary. Further, the testimony indicates it was routine procedure to take material witnesses to the station in order to record their statements. At the time appellant arrived at the station, the evidence possessed by police was insufficient to warrant a cautious person's belief that appellant had committed the crime involved. Whatever general suspicions the officers may have felt were as yet unsupported by circumstances which would have given rise to probable cause. Therefore, it is reasonable to assume appellant was free to leave. When, however, the appellant removed his clothes and the detective observed blood and was informed that a person answering appellant's description had been seen struggling with Kelly in the alley, the facts then supported a reasonable belief appellant committed the crime, following which he was appropriately advised of his Miranda rights.

Thus, we hold the questioning of appellant, prior to the time he removed his clothing and the detective received the description, was part of a general investigation and was not custodial interrogation. His statement to police was accordingly admissible since the interrogation was not conducted in violation of Miranda.

II

Appellant next urges the information against him should have been dismissed at the outset of trial, because, based upon the same set of facts, the prosecutor could elect to charge either aggravated murder under RCW 9A.32.045(7) (penalty: mandatory death) or felony-murder under RCW 9A.32.030(1)(c)(2) and (5) (penalty: life imprisonment). He claims unfettered charging discretion in effect allows the prosecutor to seek varying degrees of punishment for different persons who commit identical crimes. This, he asserts, denies equal protection of the law. Olsen v. Delmore, 48 Wn.2d 545, 550, 295 P.2d 324 (1956); State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970); U.S. Const. amend. 14, § 1, and Const. art. 1, § 12.

The first-degree felony-murder statute, in pertinent part, states:

(1) A person is guilty of murder in the first degree when:

(c) He commits or attempts to commit the crime of either ... (2) rape in the first or second degree, ... or (5) kidnaping, in the first or second degree, 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;

RCW 9A.32.030G)(c)(2) and (5).

The aggravated murder statute states:

A person is guilty of aggravated murder in the first degree when he commits murder in the first degree as defined in RCW 9A.32.030 under or accompanied by any of the following circumstances:

(7) The defendant committed the murder in the course of or in furtherance of the crime of rape or kidnaping or in immediate flight therefrom.

RCW 9A.32.045(7). (Initiative Measure No. 316 § 1.)

It is a fundamental principle of constitutional law that no person shall be subjected for the same offense to any greater or differing punishment from that to which others may be subjected. Olsen v. Delmore, supra; State v. Zornes, supra.

In this case we are faced with two statutes, one which generally defines first-degree felony-murder and another later initiative measure which treats two types of felony-murder more specially by defining those types as aggravated murder. See RCW 9A.32.030(l)(c)(2) and (5); RCW 9A.32.045(7). Generally speaking, special statutes have the effect of qualifying more general enactments. Wark v. Washington Nat'l Guard, 87 Wn.2d 864, 557 P.2d 844 (1976).

By passing the initiative measure, the voters intended to identify those crimes which are particularly outrageous to society and to elevate the status of such crimes. We have evidence of this intent since it is expressed in the statement in favor of the initiative contained in the Official Voters Pamphlet 6 (1975).¹ And those statements may be considered in determining the purpose and effect of an initiative. State ex rel. PUD 1 v. Wylie, 28 Wn.2d 113, 182 P.2d 706 (1947); Lynch v. Department of Labor & Indus., 19 Wn.2d 802, 145 P.2d 265 (1944).

The clear effect of the voters' action was to qualify and supplement the existing statute, RCW 9A.32.030. By passing the initiative and qualifying the statute, the voters thus, in essence, enacted a statute which does not repeal but rather overlays, supplements, and incorporates by reference² RCW 9A.32.030(l)(c)(2) and (5). It makes murder, as defined in pertinent subsections of RCW 9A.32.030, and which occurs in the course or furtherance of rape or kidnapping, a distinct and separate crime, i.e., aggravated murder. Such crimes are subject to enhanced punishment. RCW 9A.32.046. Thus, while the language of RCW 9A.32-.030(1)(c)(2) and (5) may be used definitionally, where the facts and circumstances support murder in the course of first- or second-degree rape or kidnapping, the prosecutor, by virtue of the distinct effect of the voter initiative, is left with no discretion but to charge aggravated murder. Accordingly,, we discern no equal protection violation.

m

Appellant assigns error to the jury instructions which permitted jurors to convict appellant of an aggravated murder which was committed by one or more alternative means.³ He contends the verdict is fatally defective because the trial court, by so instructing the jury, failed to insure that the jurors agree unanimously as to the alternative used.

First, appellant argues that two separate crimes are instructed upon by an allegation that the killing occurred in the course of rape or kidnapping. We disagree.

The jury instructions to which appellant assigns error reflect in part the language of RCW 9A.32.045(7). In determining whether a single crime committable by various means, or separate and distinct crimes are described by instructions, we must examine the lawmaker's intent. State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). If intent is clear and the language of the statute unambiguous, it must be construed in conformity with its obvious meaning, and there is no room for judicial interpretation. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972); King County v. Seattle, 70 Wn.2d 988, 425 P.2d 887 (1967); cf. State v. Arndt, supra at 378.

The statute with which we are concerned states:

A person is guilty of aggravated murder in the first degree when he commits murder in the first degree as defined in RCW 9A.32.030 under or accompanied by any of the following circumstances:

(7) The defendant committed the murder in the course of or in furtherance of the crime of rape or kidnaping or in immediate flight therefrom.

(Italics ours.) RCW 9A.32.045(7).

By defining specific circumstances which specify the crime and enhance the penalty, voters without question intended to describe but one crime — aggravated murder, which could be committed by various means. Further, this statute is analogous to premeditated first-degree murder and felony-murder. Where these crimes are charged, alternate means, not repugnant to one another, may be instructed upon since only a single offense, a killing, is committed. State v. Talbott, 199 Wash. 431, 91 P.2d 1020 (1939) (felony-murder and premeditated murder); State v. Stuhr, 1 Wn.2d 521, 96 P.2d 479 (1939) (indecent liberties); People v. Milan, 9 Cal. 3d 185, 507 P.2d 956, 107 Cal. Rptr. 68 (1973) (first-degree murder); People v. Chavez, 37 Cal. 2d 656, 234 P.2d 632 (1951) (first-degree murder); State v. Hazelett, 8 Ore. App. 44, 492 P.2d 501 (1972) (first-degree murder); see State v. Arndt, supra at 390 (Brachtenbach, J., dissenting), and the cases cited therein.⁴

The statute involved in this case clearly describes a single offense. It is, however, one which can be committed in one or more ways, neither of which is repugnant to the other. This being so, the jury verdict was required to be unanimous as to the guilt of appellant for aggravated murder, so long as substantial evidence was presented to support each of the alternative circumstances or methods of committing it. State v. Arndt, supra; State v. Talbott, supra.

Appellant argues, however, that there is no evidence to support the alternative method of kidnapping. Thus, he asserts reversal is warranted under the above test.

Under the statutory scheme, in order to find that appellant committed aggravated murder by the kidnapping alternative, it was necessary for the jurors to find that appellant committed the crime while in the course of or in furtherance of an abduction of the victim. RCW 9A.32-.045(7), RCW 9A.32.030(1)(c)(5), and RCW 9A.40.010 and .020. As defined for purposes of the kidnapping statute, abduct means: "to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force". RCW 9A.40.010(2). And restrain means restriction of "a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. RCW 9A.40.010(1).

Appellant suggests the evidence is insufficient to establish abduction. Review of the sufficiency of evidence is limited to a determination of whether the State has produced substantial evidence tending to establish circumstances from which a jury could reasonably infer the fact to be proved. State v. Randecker, 79 Wn.2d 512, 487 P.2d (1971). In determining whether the necessary quantum of evidence exists, it is unnecessary for the court to be satisfied of guilt beyond a reasonable doubt. It is only necessary for it to be satisfied that there is substantial evidence to support the State's case or the particular element in question. State v. Randecker, supra; State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977).

In this case, the evidence which the jury heard and was entitled to believe, would establish that the victim, fully clothed, was physically swept off her feet to be carried away from the point of initial encounter by an individual fitting the description of appellant. She evidently resisted, as best an 8 1/2-year-old child could, by kicking and screaming. Her resistance was met by an attempt to muffle her screams and then by use of a butcher knife. The victim had two wounds, one described as a defensive wound on her hand and another in her chest, the latter penetrating her heart and the aorta. After the stabbing, the victim, bleeding profusely, was removed to a secluded stairwell where appellant was observed with her then substantially nude body.

Furthermore, the outside of appellant's shirt and pants were stained with the victim's blood. In addition, it was noted at the police station that the fly of appellant's pants and his shorts were blood smeared and the shorts askew in such a fashion as to expose his genitals.

From these facts and circumstances, the jury could reasonably believe that appellant attempted to physically restrain the victim in the alleyway, and when he was met with her screams and resistance he used the butcher knife — a deadly force — as a means of accomplishing restraint. Further, the jury was instructed, in statutory language, on abduction by secreting.⁵ The jurors could have also reasonably believed that appellant wanted to isolate, conceal, and hold the victim in order to commit his crime of rape, and thus killed in furtherance of so secreting the victim in the secluded alcove of the stairwell.

We are satisfied that there exists substantial evidence from which the jury could infer appellant killed while in the course of or in furtherance of the statutorily defined offense of kidnapping. Appellant does not challenge the sufficiency of the evidence regarding rape. Thus, since there is substantial evidence of both circumstances, applying Arndt, it was not error to instruct the jury in the alternative.

IV

The final argument we must address is the constitutionality of RCW 9A.32.046,⁶ the codification of Initiative 316, § 2, insofar as it imposes a mandatory death penalty. Appellant argues it violates the eighth and fourteenth amendments to the United States Constitution as interpreted in Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976); Jurek v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976); Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976); Roberts v. Louisiana, 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001 (1976); Roberts v. Louisiana, 431 , 52 L. Ed. 2d 637, 97 S. Ct. 1993 (1977) (per curiam).

The respondent urges us to uphold the constitutionality of this law. First, it argues the Supreme Court's failure to set forth a majority rationale in the above cases justifies our disregarding the effect of these cases in reaching our decision.

Theoretically, a case without a rationale subscribed to by a majority of the court stands only for its general result. Comment, Supreme Court No-Clear-Majority Decisions, A Study in Stare Decisis, 24 U. Chi. L. Rev. 99 (1956). And in the series of Supreme Court cases striking down mandatory death penalty statutes there is, as respondent notes, a lack of majority rationale. The court is clearly split on the issue of whether or not the death penalty should ever be employed in a civilized society.

The result the court has reached in each case, however, has been consistent: invalidation of mandatory death penalties. The court has recently reemphasized its disapproval of the mandatory death penalty by stating:

[I]t is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense.

(Footnote omitted. Italics ours.) Roberts v. Louisiana, supra at 637.

We believe the import of this language is clear; a mandatory death penalty cannot withstand constitutional scrutiny. Thus, we decline respondent's invitation to disregard the decisions of the Supreme Court on this issue.

Respondent also points out that a voter approved mandatory death penalty case has not yet been subject to the Supreme Court's analysis. It urges us to consider that when faced with such a case, the court would uphold the penalty against constitutional challenge.

Respondent's belief that a voter initiative mandatory death penalty such as RCW 9A.32.046 might be sustained is based on one of the more troubling aspects of the death penalty cases. The Supreme Court has invalidated legislatively enacted mandatory death penalties by resting on the Eighth Amendment. That amendment assures that a state's power to punish is exercised within the limits of civilized standards. Woodson v. North Carolina, supra. To determine these limits and reach the conclusion that a mandatory death penalty is in excess of the limits, the court looked to history, juror attitudes, and legislative enactments. It then reached the decision to invalidate the mandatory death penalty by finding evidence of a societal belief that it was an unduly harsh punishment. Woodson v. North Carolina, supra.

But, respondent argues that the court would necessarily have to reach an opposite result where voters initiate the penalty and give evidence of societal approval. While this argument points out the pitfall inherent in resting a constitutional holding on social beliefs, we cannot conceive the court would uphold RCW 9A.32.046. It has considered the possibility that reenactment of the mandatory death penalty evinces a trend toward societal approval of that penalty. The court has concluded, and we believe rightfully, that the drafting of mandatory death penalty statutes was the result of a misreading of the court's multi-opinioned decision in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972).⁷ Woodson v. North Carolina, supra at 298-99. Further, the court has not yet adopted the view urged by respondent, that public perceptions alone are conclusive on the issue of the propriety of criminal sanctions. A penalty must also accord with human dignity, which is the basic concept underlying the Eighth Amendment. Gregg v. Georgia, supra at 173.

The holdings of the Supreme Court lead us to an inescapable conclusion. Specifically, RCW 9A.32.046, which is the mandatory death penalty section of RCW 9A.32, is invalid as it violates the eighth and fourteenth amendments to the United States Constitution.

We affirm the judgment that appellant is guilty of aggravated murder in the first degree. Our conclusory holding, however, defeats the sentence of death imposed on appellant by the trial court pursuant to RCW 9A.32.046. Accordingly, we remand the cause for reimposition of the appropriate sentence.

Wright, C.J., and Rosellini, Brachtenbach, and Horowitz, JJ., concur.

1 "Initiative 316 would serve several vital social functions. It would provide a deterrence to the would-be murderer; it would identify those crimes specified in Initiative 316 as particularly outrageous to society; and it would serve to reinforce society's concern for the dignity and value of innocent human life." Official Voters Pamphlet 6 (1975).

2 Analogous principles are found in other areas of law. We have previously recognized the existence of both overlay and reference statutes. In Leschi Improvement Council v. State Highway Comm'n, 84 Wn.2d 271, 525 P.2d 774 (1974), we held that the State Environmental Policy Act of 1971 (RCW 43.21C) was supplementary and overlaid existing law. In Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973), we recognized the legal effect of reference statutes. We stated the terms to which reference is made are to be treated as if incorporated into the referring act, just as completely as if they had been explicitly written therein. See State ex rel. Toll Bridge Authority v. Yelle, 32 Wn.2d 13, 200 P.2d 467 (1948).

3 "To convict the defendant of the crime of aggravated murder in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

” (1) That on or about the 28th day of September, 1976, Kelly Ann Emminger, was killed;

"(2) That the defendant was attempting to commit rape in the first degree or kidnapping in the first degree;

"(3) That the defendant caused the death of Kelly Ann Emminger in the course of or in furtherance of rape in the first degree or kidnapping in the first degree;

” (4) That Kelly Ann Emminger was not a participant in the crime;

"(5) That the acts which caused the death of the decedent occurred in King County, Washington.

"If you 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.

"On the other hand, if, after weighing all the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty." Instruction No. 5.

"A person commits the crime of aggravated murder in the first degree when he commits or attempts to commit rape in the first degree or kidnapping in the first degree, and in the course of and in furtherance of rape in the first degree, and kidnapping in the first degree, the defendant or another participant causes the death of a person other than one of the participants.

"A person attempts to commit a crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime." Instruction No. 7.

No exception was taken to Instruction No. 7.

4 It should be noted, in this respect, that State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976), overrules the pertinent dicta in State v. Golladay, 78 Wn.2d 121, 470 P.2d 191 (1970), insofar as it is inconsistent with that opinion. The same reasoning and result applies here.

5 "A person commits the crime of kidnapping in the first degree when he intentionally abducts another person with intent to facilitate commission of any felony or flight thereafter.

Abduct' means to restrain a person by either

" (a) secreting or holding her in a place where she is not likely to be found, or

"(b) using or threatening to use deadly force.

". . ." Instruction No. 9.

6 "A person found guilty of aggravated murder in the first degree as defined in ■ RCW 9A.32.045, shall be punished by the mandatory sentence of death. Once a person is found guilty of aggravated murder in the first degree, as defined in RCW 9A.32.045, neither the court nor the jury shall have the discretion to suspend or defer the imposition or execution of the sentence of death. Such sentence shall be automatic upon any conviction of aggravated first degree murder. The death sentence shall take place at the state penitentiary under the direction of and pursuant to arrangements made by the superintendent thereof: Provided, That the time of such execution shall be set by the trial judge at the time of imposing sentence and as a part thereof." RCW 9A.32.046.

7 Indeed, among the arguments advanced by proponents of Washington's mandatory death penalty was that the United States Supreme Court had ruled capital punishment must be mandatory. Official Voters Pamphlet 6 (1975). This was clearly a misreading of Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972).