Washington's Second Degree Felony-murder Rule and the Merger Doctrine: Time for Reconsideration

• Publication year: 1987
• Citation: Vol. 11 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 2WINTER 1988

Washington's Second Degree Felony-Murder Rule and the Merger Doctrine: Time For Reconsideration

Jeffrey A. James

I. Introduction: The Felony-Murder Rule In General

The felony-murder rule, which operates to hold a defendant responsible for any death that occurs during her commission or furtherance of a felony, evolved from the common law of England.(fn1) The rule has been incorporated in some form or another into the criminal homicide statutes of most states,(fn2) and has generated a great deal of controversy and commentary.(fn3) The operation of the rule is complex, and defenses to its application are numerous.(fn4) A substantial difference distinguishes felony-murder from "non-felony" murder (hereinafter "substantive murder"). A key element of substantive murder is the defendant's mental state: she must have intended to kill the victim.(fn5) Felony-murder does not share this requirement; whether the defendant intended to kill the victim is irrelevant.(fn6) Instead, the felony-murder rule allows the requisite malice for murder to be inferred from the malicious intent that must be present to prove the underlying felony.(fn7) In effect, the rule operates to hold a defendant accountable for any homicide that occurs during the commission of a felony. For example, if a defendant commits armed robbery, and during the course of the robbery, a police officer's stray bullet kills a bystander, the defendant can be charged with felony-murder of the bystander.(fn8)

The felony-murder rule provides a strategic advantage for prosecutors because the elements of felony-murder are less difficult to prove than are the elements of substantive murder.(fn9) For example, the underlying felony in a felony-murder charge can require either specific intent or general intent.(fn10) When the felony requires general intent, all that must be proved is that the act was intended, not that the result was intended. Intent to kill the victim need not be proved. Hence, a conviction can often be obtained under a felony-murder charge when evidence of the defendant's mental state might be insufficient to convict for substantive murder. Because the prosecutor does not have to prove intent, a defendant who commits a felony can even be held responsible for the death of an accomplice caused by the victim.(fn11)

Because it is no defense to a felony-murder charge that the defendant did not intend to kill the victim, there is a potential disparity between culpability and punishment.(fn12) As a result, some courts have chosen to interpret the rule as the circumstances of the case dictate.(fn13) In fact, the potential disparity between culpability and punishment that can result from applying the felony-murder rule has led England, where the rule originated,(fn14) to abolish it altogether,(fn15) and has led many other jurisdictions to limit the rule's application.(fn16)

Limitations on the felony-murder rule vary from state to state. One limitation on the rule's application, however, has been adopted by virtually every state except Washington:(fn17) the underlying felony supporting the felony-murder charge must be a separate felony from the act that proximately causes death. Thus, if A assaults B, and B dies as a result, A cannot be charged with felony-murder even though a death resulted from the commission of a felony (assault). In some states, the felony-murder statute excludes felonious acts that are themselves the cause of death by limiting the scope of the statute to the felonies enumerated therein.(fn18) In other states, courts apply what is known as the "merger doctrine" to exclude felonious acts such as assault from supporting a felony-murder charge. Under the merger doctrine, the assault and the resultant homicide merge into one inseparable offense- manslaughter.

The merger doctrine evolved from judicial efforts to diminish the disparity between culpability and punishment that accompanies the felony-murder rule's application when assault is the underlying felony in a felony-murder charge.(fn19) Courts adopting the merger doctrine have reasoned that the deterrent effect of the felony-murder rule is illusory; that the theoretical basis for the rule is illogical; and that allowing every assault that resulted in death to be punishable as felonymurder would do violence to the implicit meaning of criminal homicide statutes that distinguish between murder and manslaughter.(fn20)

A general policy behind the felony-murder rule is to deter persons from committing dangerous felonies,(fn21) but that deterrence is illusory. Essentially, the rule states that if persons are going to commit felonies, they had better do so carefully because they will be held strictly liable for any deaths that might result. The rule does not deter persons from committing crimes per se; rather, it deters them from committing crimes in a certain manner. For example, a person determined to commit a robbery might be deterred from using a dangerous weapon to facilitate the crime because of the increased probability that someone might be killed during the course of the robbery.(fn22) The deterrent effect of the rule in such a situation is based on an assumption that the person (1) makes a decision to commit robbery, (2) is knowledgeable of the felonymurder rule, (3) considers the risk of increased punishment via the rule if a death results from armed robbery, and (4) makes a decision to commit unarmed, as opposed to armed, robbery based on the risk of increased punishment.

This deterrent effect, however, is particularly negligible when applied to the commission of second degree assault. Presumably, most second degree assaults are the result of barroom brawls, the culmination of heated arguments, or (unjustified) acts of self-defense. The assailant might not even consider whether to assault, much less consider the rule and its operation, or the possibility of death occurring.(fn23) As one commentator noted, "Holding a felon strictly liable for the resulting homicide will hardly encourage him to assault more carefully."(fn24) The effect of applying the rule in this instance is to heap additional punishment on the defendant because of the result of the act, not the act itself.(fn25)

Furthermore, application of the felony-murder rule when assault is the underlying basis for a felony-murder charge is illogical.(fn26) The rule operates on the premise that an act separate from the underlying felony caused a death, and that the requisite intent for substantive murder can be inferred from the intent to commit the felony. When the underlying felony is assault, however, there is no separate act that caused the death; there is only one act and one result.(fn27)

Finally, gradations in homicide statutes are based on varying degrees of culpability.(fn28) Without a felony-murder rule, the non-intentional killing of another would warrant a charge of manslaughter. Where the facts support equally a charge of manslaughter or second degree felony-murder, a question arises: Why should a felony-murder defendant receive the same sentence for committing a non-intentional killing as a defendant found to have committed an intentional killing? In response to this question, courts have found it unlawful to convict a defendant of a specific intent crime (murder) when the only mental state proven was the general intent to assault.(fn29)

Washington's criminal homicide statutes contain first and second degree felony-murder provisions.(fn30) Second degree felony-murder requires neither intent to kill, nor intent to commit a felony separate from the act that caused the homicide.(fn31) Although Washington's criminal code states that criminal punishment is to be commensurate with culpability,(fn32) the penalty for second degree felony-murder is potentially more severe than the penalty for intentional murder.(fn33)

This Comment will discuss the effect of applying Washington's felony-murder statute where assault is the underlying felony. The case law interpreting section 9A.32.050(1)(b) of the Revised Code of Washington [hereinafter section (1)(b)] and the legislative intent behind that statute will be discussed, as will the effects of allowing assault to support a section (1)(b) charge. The thesis of this Comment is that interpretation of Washington's criminal code as a whole leads to the conclusion that the legislature never intended assault to be capable of supporting a section (1)(b) charge. It is recommended that the Washington Supreme Court reconsider its position regarding section (1)(b) in light of recent statutory enactments and the court's opinions in other areas. Additionally, the legislature is urged to clarify section (1)(b) by amending the statute.

II. Washington Case Law

The Washington Supreme Court has repeatedly held(fn34) that an assault that causes death does not merge into the crime of manslaughter but instead can support a section (1)(b) charge. The court's reasoning in various cases can be summarized as follows:

(1) The language of section (1)(b) allows any felony other than those enumerated in section 9A.32.030(1)(c)(fn35) to support a felony-murder charge. Because assault is not one of the felonies enumerated in section 9A.32.030(1)(c),(fn36) it must fall within the scope of section (1)(b);

(2) there is no express language in the criminal code authorizing the...