State v. Thompson

This is an appeal from a conviction for murder in the second degree. The victim was defendant's husband, Wayland D. Thompson. On the day of the killing, the defendant's husband had consumed considerable amounts of alcohol and used drugs excessively. During the evening, he had been driving recklessly with defendant and two other passengers in the car and had struck defendant and threatened to kill her. The car reached the Thompson residence and the two passengers got out and went into the house. Shortly thereafter, shots were heard. Defendant called the sheriff and reported she had shot her husband. At the trial she claimed she had shot him in self-defense.

Defendant was charged by an amended information with causing the death of Wayland Thompson while engaged in the commission of a felony, assault in the second degree. In the trial before a jury, defendant was found guilty of murder in the second degree. We affirm.

Prior to trial, appellant filed a written waiver of jury trial. She gave the following reasons: recent crimes had been committed in the county which had generated public interest; crimes of kidnapping, rape, and murder had been committed recently in nearby counties; and her appearance and history of drug and alcohol use would not impress a jury favorably.

The statute controlling the waiver of a jury, states:

No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: Provided however, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.

RCW 10.01.060. CrR 6.1(a) states:

Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.

In State v. Jones, 70 Wn.2d 591, 424 P.2d 665 (1967), we held that the withholding of the assent of the court was reversible only on the issue of whether the discretion was clearly untenable or manifestly unreasonable. State v. Maloney, 78 Wn.2d 922, 481 P.2d 1 (1971), held that absent a showing that the appellant was prejudiced by having his cause heard before a jury or an indication that the trial court abused its discretion, no reversible error could be found.

Here the trial judge refused to allow the appellant to waive a jury for the following reasons: the seriousness of the crime charged; a jury would prevent the appearance of impropriety, lack of fairness, or injustice; the verdict should represent the thinking of the community as represented by 12 jurors; and á jury would free the court from having to weigh the evidence.

No constitutional rights are here involved (Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965)); the trial judge did not abuse his discretion; and we decline appellant's invitation to modify the standards of Jones and Maloney.

Appellant next argues that there was not sufficient evidence to send the case to the jury or to support the verdict. The elements of a crime can be established by both direct and circumstantial evidence. As we stated in State v. Holbrook, 66 Wn.2d 278, 279, 401 P.2d 971 (1965):

A challenge to the sufficiency of the evidence or a motion having that effect admits the truth of the state's evidence and all inferences that reasonably can be drawn therefrom. Furthermore, the evidence is interpreted most strongly against the defendant and in a light most favorable to the state.

See also State v. Randecker, 79 Wn.2d 512, 487 P.2d 1295 (1971); State v. Dugger, 75 Wn.2d 689, 453 P.2d 655 (1969); State v. Gibson, 79 Wn.2d 856, 490 P.2d 874 (1971).

The State produced evidence that the defendant reported she shot her husband. There was additional evidence that there were three shots fired with a .38 caliber pistol. Testimony of the State's witnesses revealed that the defendant and her husband had been drinking on the evening of the shooting, that they had argued violently and that he had struck her. While the defendant claims that the shooting was done in self-defense, she apparently was disbelieved by the jury. See State v. Turpin, 158 Wash. 103, 290 P. 824 (1930). In reviewing the record, we are satisfied that there was sufficient evidence to send the case to the jury and to support the verdict.

Finally, appellant urges that we overrule State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966). The relevant statutes considered in Harris are, in part:

The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either—

(1) With a premeditated design to effect the death of the person killed, or of another; or

(2) By an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to effect the death of any individual; or

(3) Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree . . .

RCW 9.48.030.

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.

RCW 9.48.040.

In Harris, we held that, where the precedent felony in a felony murder is an assault and inherent in the homicide, the assault does not merge into the resulting homicide. Most 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. State v. Mosley, 84 Wn.2d 608, 528 P.2d 986 (1974). Washington and Maine appear to be the only jurisdictions which have considered and rejected the merger rule. See Annot., 40 A.L.R.3d 1341 (1971). Both appellant and the courts of other jurisdictions consider this to be a matter of statutory interpretation rather than one of constitutional rights.

In State v. Mosley, supra, we granted a petition to review the Harris rule. Before the day set for hearing, the petitioner escaped from custody. Consequently, the petition was dismissed.

While it may be that the felony murder statute is harsh, and while, it does relieve the prosecution from the burden of proving intent to commit murder, it is the law of this state. The legislature recently modified some parts of our criminal code, effective July 1, 1976. However, the statutory context in question here was left unchanged.

The rejection by this court of the merger rule has not been challenged by the legislature during the nearly 10 years since Harris, nor have any circumstances or compelling reasons been presented as to why we should overrule the views we expressed therein.

The judgment is affirmed.

Stafford, C.J., Hamilton and Brachtenbach, JJ., and Hale, J. Pro Tern., concur.