By Pierre Delecto
In re Pers. Restraint of Knight, No. 101068-1 (Nov. 9, 2023). At issue: whether separate convictions for felony murder and first-degree robbery violate the state or federal constitution when evidence was insufficient to justify a conviction for the underlying felony. Washington’s Supremes held they do and remanded for resentencing.
The trial court sentenced Petitioner to 860 months in prison based on convictions for first-degree felony murder, first-degree robbery, and other offenses. Petitioner was convicted of engaging in a home invasion robbery with three accomplices in April 2010. The jury found Petitioner and one accomplice had gained access to the residence under the pretext of buying a ring listed for sale online. They used a handgun to “freeze” the adult residents while they applied zip ties as restraints. Petitioner used a Bluetooth device to signal to the other accomplices to enter as well.
The intruders then zip-tied the residents’ minor children, brought them into the same room as their parents, and pistol-whipped one child. At gunpoint, Wife acknowledged the existence of a safe and Husband agreed to provide the combination. Husband broke free of his zip ties and attempted to attack one of the intruders. He was shot in the ear and fell unconscious. The intruders dragged him to another room and shot him to death. The intruders and Petitioner fled the scene with rings and other valuables. They never gained access to the safe.
Petitioner was charged with felony murder based on first-degree robbery; two counts of first-degree robbery, one for each adult victim; two counts of second-degree assault, one for assaulting Wife and one for assaulting her child; and first-degree burglary. Each charge alleged accomplice liability, firearm enhancements, and aggravating factors.
The jury was instructed that Petitioner’s felony murder charge was based on the allegation she or an accomplice had committed first-degree robbery. However, the jury was not told which conduct formed the basis of the underlying robbery. The instructions specified the State was required to prove a completed robbery and the jury returned guilty verdicts on all counts.
Petitioner unsuccessfully appealed and her first personal restraint petition was denied. She filed her second petition over seven years after judgment became final in 2014. Petitions are subject to a one-year statutory time bar,1 but an exception exists where the conviction was not supported by sufficient evidence. Thus, whether her second petition was timely turns on the insufficiency claim’s merits.
When presented with a sufficiency challenge, courts construe the evidence in the light most favorable to the State and ask whether a rational trier of fact could have found each and every element of the crime charged beyond a reasonable doubt.2 All reasonable inferences are drawn in the State’s favor and the evidence is interpreted against the defense.3 Should there be a failure of proof as to an essential element of a charged offense, defendant’s conviction must be reversed with prejudice.4
The jury was instructed the charge of felony murder required the State to prove the following elements: (1) around April 28, 2010, Petitioner or an accomplice committed Robbery in the First Degree; (2) Petitioner or an accomplice caused the death of Husband in the course of or in furtherance of such crime; (3) Husband was not a participant in the crime of Robbery in the First Degree; and (4) any of these acts occurred in the State of Washington.
Felony murder need not be based on a completed crime,5 but should it be predicated on an attempted crime, jury instructions must state so.6 Here, the instructions referenced a completed crime, only. Nor did the State object to the instructions at trial. The law of the case holds the State was required to prove the murder was caused in the course of or in furtherance of the completed crime of first-degree robbery.7
The decision regarding Petitioner’s prior petition held the robbery that provided the basis for the felony murder charge was the robbery of the safe. Yet evidence at trial showed nothing more than an attempted robbery of the safe. The safe was never breached. Nor was it removed from the residence.
State argued the “second” robbery that formed the basis of the felony murder conviction was the robbery of items taken from the upstairs of the residence. At oral argument, however, the State posited there were never actually two distinct robberies. Rather, the home invasion began when the gun was pointed at the residents and did not end until the intruders fled the scene.
The Court’s decision on the prior petition, however, clearly acknowledged two distinct robberies, the second — the robbery of the safe — was the basis of the felony murder conviction.
Additionally, the decision’s legal reasoning emphasized separate robbery offenses, not merely separate effects. Two separate robberies were consistent with the jury instructions because the State elected to prove two robberies during closing argument to the jury: one as the basis for felony murder, the other as a standalone crime.
Had the prior decision stated there was only one robbery — either a single ongoing robbery of the home or a robbery of the rings — the ensuing analysis and outcome would be different. Double jeopardy prohibits punishing felony murder separately from the underlying felony on which the murder charge is based.8 Separate convictions and punishments are available only when the felony murder is based on a felony different from other felonies found by the jury.9 To justify separate convictions and punishments for Petitioner’s felony murder and robbery convictions, the two crimes must be based on separate conduct.
“Where, as here, the defendant’s conviction and punishment required a finding of distinct criminal conduct, we cannot go beyond what was established by the jury’s verdict.”10
Because Petitioner’s murder and robbery convictions were based on distinct conduct, the separate convictions and punishments were not tantamount to multiple punishments for the same crime; however, the specific conduct the State chose as the basis for the felony murder conviction was not actually sufficient to prove the elements of felony murder as that charge was presented to the jury. Ironically, then, the State’s victory in the prior decision (allowing separate punishments for robbery and felony murder) mandates its defeat in this instance. Petitioner may have been subject to separate punishments for robbery based on the theft of the ring and felony murder based on an attempted robbery of the safe, but as submitted to the jury, the conviction for felony murder cannot be sustained.
In a lengthy dissent, Justice Madsen noted that in the Court’s prior decision Petitioner’s conviction was upheld against a double jeopardy challenge because the felony murder conviction was based on the robbery of Husband’s wedding ring. During the home invasion, the family was zip-tied and held at gunpoint, allowing the invaders to abscond with valuables and murder Husband. True, the jury found the intruders shot Husband to death as they attempted to rob the safe, but that finding does not make the attempted robbery of the safe the predicate of the felony murder. The predicate for murder is the robbery of the rings.
The act of taking the rings had been accomplished, but Petitioner and her accomplices had not completed the act of robbery. Rather than flee the scene, they continued to commit other takings and attempted takings. Husband was hauled from the floor to show the intruders the safe. The continuing crimes, including this second robbery of the safe, culminated in Husband’s death. Husband was injured in a distinct manner when robbed of his ring and then injured in a distinct manner when shot during the robbery of the safe.
Petitioner’s first petition challenged her felony murder and robbery convictions as violating double jeopardy. At that time, the Court reasoned an independent effect resulted from the robbery of the safe as compared to the robbery of the ring, and no double jeopardy violation could have occurred. That is the law of the case for the second petition, the outcome of which depends entirely on the Court’s earlier decision. The law of the case doctrine “stands for the proposition that once there is an appellate holding enunciating a principle of law, that holding will be followed in subsequent stages of the same litigation.”11
Here, Petitioner argued the earlier decision identified the robbery of the safe as the predicate offense for felony murder. Because the safe robbery was not complete when the jury instructions required a completed offense, Petitioner stated insufficient evidence supports her murder conviction. But Petitioner failed to point to any substantial change in the evidence warranting a second look at her original case.
The Court’s earlier decision makes resolving the instant petition straightforward. The Court held (and the dissenting justices agreed) the robbery of Husband’s wedding ring served as the predicate offense for the felony murder charge. A majority of the Court concluded those offenses do not merge because the injuries Husband sustained were distinct and separate from each other, satisfying the independent purpose exception to merger. Therefore, Justice Madsen would dismiss the second petition as untimely.
1 See RCW 10.73.090(1).
2 State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010).
3 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
4 State v. Smith, 155 Wn.2d 496, 505, 120 P.3d 559 (2005).
5 RCW 9A.32.030(1)(c).
6 See State v. Stewart, 35 Wn. App. 552, 555, 667 P.2d 1139 (1983).
7 See State v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017); State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998).
8 See State v. Muhammad, 194 Wn.2d 577, 619, 451 P.3d 1060 (2019) (plurality opinion) (opinion of Gordon McCloud, J.) (noting that “felony murder and the felony on which it is based . . . must merge”); see also id. at 637 (Madsen, J., concurring/dissenting) (concluding that felony murder premised on rape, and the rape itself, “constitute[d] one crime”); Whalen v. United States, 445 U.S. 684, 693-94, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).
9 See Muhammad, 194 Wn.2d at 626 (opinion of Gordon McCloud, J.).
10 Op. at 19 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); see also Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (“If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.”)).
11 Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005).
