State v. Bingham , 40 Wash. App. 553 ( 1985 )

Worswick, C.J.

We are asked to decide whether the time to effect death by manual strangulation is alone sufficient to support a finding of premeditation in the absence of any other evidence supporting such a finding. We hold it is not. Accordingly, we reverse the conviction of Charles Dean Bingham for aggravated first degree murder. We also overrule State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975),¹ to the extent that it can be read to hold otherwise.

Leslie Cook, a retarded adult living at the Laurisden Home in Port Angeles, was raped and strangled on February 15, 1982. Bingham was the last person with whom she was seen. The two of them got off the Port Angeles-Sequim bus together at Sequim about 6 p.m. on February 15. They visited a grocery store and two residences. The last of these was Enid Pratt's where Bingham asked for a ride back to Port Angeles. When he was refused, he said they would hitchhike. They took the infrequently traveled Old Olympic Highway. Three days later, Cook's body was discovered in a field approximately Vi mile from the Pratt residence.

At trial, the State's expert testified that, in order to cause death by strangulation, Cook's assailant would have had to maintain substantial and continuous pressure on her windpipe for 3 to 5 minutes. The State contended that this alone was enough to raise an inference that the murder was premeditated. The trial judge agreed because of State v. Smith, supra.² Therefore, it allowed the issue of premeditation to go to the jury. The jury convicted Bingham of aggravated first degree murder, rape being the aggravating circumstance. On appeal, counsel for Bingham concedes that a finding of guilty of murder was justified; he challenges only the finding of premeditation, contending that the evidence was insufficient to support it. We agree.

Premeditation is a separate and distinct element of first degree murder. It involves the mental process of thinking over beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short, after which the intent to kill is formed. State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982). The time required for manual strangulation is sufficient to permit deliberation. See RCW 9A.32.020(1); State v. Gaines, 144 Wash. 446, 258 P. 508 (1927), cert, denied, 277 U.S. 81 (1928). However, time alone is not enough. The evidence must be sufficient to support the inference that the defendant not only had the time to deliberate, but that he actually did so. To require anything less would permit a jury to focus on the method of killing to the exclusion of the mental process involved in the separate element of premeditation.

The concept of premeditation had a slow but sure beginning in Anglo-American legal history. More than 500 years ago, English jurists arrived at the not surprising conclusion that the worst criminals—and those most deserving of the ultimate punishment—were those who planned to kill and then did so. Thus began the movement toward classification of homicides that resulted in restriction of the death penalty to those involving "malice prepensed" or "malice aforethought."³ When Washington's first criminal code was enacted in 1854, the Territorial Legislature abandoned this archaic language and used the phrase "deliberate and premeditated malice" in defining first degree murder. It thereby made a clear separation between a malicious intent and the process of deliberating before arriving at that intent.⁴

Our Supreme Court recognized the need for evidence of both time for and fact of deliberation in State v. Arata, 56 Wash. 185, 189, 105 P. 227 (1909). Although it reversed a first degree murder conviction because a portion of an instruction was erroneous, it approved the remainder of the instruction, saying:

In the case at bar, the court said, in substance, the law knows no specific time; if the man reflects upon the act a moment antecedent to the act, it is sufficient; the time of deliberation and premeditation need not be long; if it furnishes room for reflection and the facts show that such reflection existed, then it is sufficient deliberation, and closed the instruction upon this point with the statement: "There need be no appreciable space of time between the formation of the intention to kill and the killing." By these few last words the court destroyed at once all that was good in the entire statement, and gave the jury a rule which this court has frequently held was erroneous. This was reversible error.

(Italics ours.) Arata, 56 Wash, at 189. This analysis seems implicitly to have been recognized, although imperfectly expressed, in more recent cases as well.⁵

The subject of premeditation appears frequently in Washington cases. However, it is seldom discussed in a way that affords clear, objective guidance to trial judges in determining the sufficiency of the evidence to support it. Nevertheless, review of these cases reveals that in each one where the evidence has been found sufficient, there has been some evidence beyond time from which a jury could infer the fact of deliberation. This evidence has included, inter alia, motive, acquisition of a weapon, and planning directly related to the killing. See State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962), cert, denied, 375 U.S. 883 (1963); State v. Ross, 56 Wn.2d 344, 353 P.2d 885 (1960); State v. Lindamood, 39 Wn. App. 517, 693 P.2d 753 (1985); State v. Commodore, 38 Wn. App. 244, 684 P.2d 1364 (1984).

Unless evidence of both time for and fact of deliberation is required, premeditation could be inferred in any case where the means of effecting death requires more than a moment in time. For all practical purposes, it would merge with intent; proof of intent would become proof of premeditation. However, the two elements are separate. Premeditation cannot be inferred from intent. State v. Brooks, 97 Wn.2d at 876; State v. Commodore, supra.⁶

Premeditation can be proved by direct evidence, or it can be proved by circumstantial evidence where the inferences drawn by the jury are reasonable and the evidence supporting the jury's findings is substantial. State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977). There was no such evidence here, either direct or circumstantial.

There was no evidence that Bingham had known Cook before February 15 or that he had a motive to kill her. By chance, they took the same bus. When Cook's companion on the bus refused to go to Sequim with her, Bingham offered to see that Cook got back to the Laurisden Home later. That was apparently still his intention when he asked for a ride at the Pratt residence. It could be inferred that between there and the field A mile away, he decided to rape her. A reasonable jury could not infer from this beyond a reasonable doubt that he also planned to kill her. There is no other evidence to support a finding of premeditation. The fact of strangulation, without more, leads us to conclude that the jury only speculated as to the mental process involved in premeditation. This is not enough. The premeditation finding cannot stand.

There remains the difficult question of how to dispose of this case. Counsel for Bingham concedes that Bingham is at least guilty of second degree murder. See RCW 9A.32.050-(l)(a).⁷ The jury was instructed on second degree murder as a lesser included offense and necessarily found the requisite elements in order to reach the verdict it did. See Watson v. State, 2 Wash. 504, 27 P. 226 (1891); State v. Plakke, 31 Wn. App. 262, 639 P.2d 796 (1982), overruled on other grounds in State v. Davis, 35 Wn. App. 506, 667 P.2d 1117 (1983).

We believe the evidence also would have supported a finding of felony murder under RCW 9A.32.030(l)(c). However, the State did not charge Bingham with felony murder. The trial judge correctly refused to instruct the jury that felony murder was a lesser included offense of the crime as charged. In order to satisfy the requirement for aggravation, the jury was required to find that the murder was committed either in the course of or in furtherance of the rape. RCW 10.95.020(9).⁸ However, the felony murder statute requires that the offense be committed both in the course of and in the furtherance of the rape. RCW 9A.32-.030(l)(c).⁹ We will refrain from offering here a discussion of the meanings of these terms. It will suffice to note the evident intent of the Legislature that the two terms mean different things. See In re Marriage of Gimlett, 95 Wn.2d 699, 629 P.2d 450 (1981). It is impossible to know whether the jury found the existence of both elements or only one. We cannot remand for sentencing for felony murder unless it is clear from the record that the jury expressly found each of the elements of that crime. See State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980); State v. Jones, 22 Wn. App. 447, 591 P.2d 796 (1979); State v. Martell, 22 Wn. App. 415, 591 P.2d 789 (1979). In the circumstances, the State's election not to charge felony murder in the first instance precludes such a charge now. CrR 4.3; State v. Anderson, 96 Wn.2d 739, 638 P.2d 1205, cert, denied, 459 U.S. 842 (1982).

Reversed. Remanded for entry of judgment and sentence for second degree murder.

Petrich, J., concurs.

1 Affd, 88 Wn.2d 127, 559 P.2d 970, cert, denied, 434 U.S. 876 (1977).

2 In Smith, there was some evidence of motive and of preparation. The opinion, however, does not focus sharply on this evidence but can be read to hold the time element alone sufficient to support premeditation. It can also be read to hold that more is required, inasmuch as it refers to events preceding the killing and makes passing reference to "the circumstances surrounding the child's death". 12 Wn. App. at 732. Our purpose in referring to Smith is to clear up this confusion.

It should also be noted that Smith was decided before our Supreme Court adopted the beyond a reasonable doubt standard enunciated in State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980), for testing the sufficiency of the evidence to support a jury finding.

3 See Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932); Walther, Should Virginia Put the Planning Back Into the Premeditation Requirement for Murder?, 40 Wash. & Lee L. Rev. 340 (1983).

Confusion inevitably crept in as to whether the concept of "malice aforethought" involved premeditation. See Regina v. Doherty, 16 Cox Crim. Cas. 306 (1887). In a recent case, one of the English Justices pointed out that the term was ambiguous and should be discarded in favor of language more descriptive of the accused's state of mind. See opinion of Lord Hailsham of St. Marylebone, Hyam v. Director of Pub. Prosecutions, [1974] 2 All E.R. 41.

4 See Laws of 1854, p. 78, § 12; State v. Shirley, 60 Wn.2d 277, 279, 373 P.2d 777 (1962).

5 E.g., State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962) (court found evidence of premeditation from repeated assaults, then held time span adequate), cert, denied, 375 U.S. 883 (1963); State v. Trickel, 16 Wn. App. 18, 553 P.2d 139 (1976) (instructions held sufficient to inform jury that there must have been sufficient time and deliberation in fact); State v. Tikka, 8 Wn. App. 736, 509 P.2d 101 (1973) (the court separately considered the defendants' behavior and the time element and found both sufficient); State v. Lanning, 5 Wn. App. 426, 487 P.2d 785 (1971) (court held time sufficient, then found premeditation apparent from fact that defendant brought a weapon with him).

6 See also State v. Shirley, supra; State v. Ross, supra; State v. Duncan, 101 Wash. 542, 172 P. 915 (1918); State v. Blaine, 64 Wash. 122, 116 P. 660 (1911); State v. Rutten, 13 Wash. 203, 43 P. 30 (1895); State v. Coella, 3 Wash. 99, 28 P. 28 (1891); State v. Tikka, supra.

7 RCW 9A.32.050(l)(a) provides:

"Murder in the second degree. (1) A person is guilty of murder in the second degree when:

” (a) With intent to cause the death of another person but without premeditation, he causes the death of such person or of a third person;..."

8 RCW 10.95.020(9) (b) provides:

"(9) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes: . . .

"(b) Rape in the first or second degree;'

9 RCW 9A.32.030(1)(c) provides in relevant part:

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

" (c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, 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;..."