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State v. Bottrell12/15/2000
new trial on the issue of second degree murder.
II. FIRST DEGREE FELONY MURDER
First degree felony murder has two elements: (1) a homicide; (2) committed 'in the course of or in furtherance of . . . or in immediate flight' from a robbery. RCW 9A.32.030(1)(c). 'Robbery' is defined as: {U}nlawfully tak{ing} personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property{.} . . . Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking{.} . . . Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear. RCW 9A.56.190.
At trial, Bottrell admitted that she had stolen from Hall before. From this admission, the jury could have reasonably inferred that Bottrell intended to steal from Hall again, especially if the jury viewed the admission in conjunction with her statements to fellow inmates: (1) She intended 'taking {Hall} for all he had;' (2) if she married Hall and he happened to die from an overdose of insulin, everything would be hers; (3) she had gone over to Hall's house to take money and 'stuff'; (4) Hall had resisted and called police; and (5) a fight had ensued and she was glad she had killed Hall. Moreover, after her aborted attempts to clean and to cover up evidence at the crime scene, she and her boyfriend stole Hall's Lincoln Continental, the very car she had previously told a fellow inmate she would take from Hall. Thus, a jury could have reasonably inferred from the evidence that, even before she killed Hall, Bottrell had the requisite intent to commit robbery, the underlying predicate offense for her felony murder conviction. The excluded proffered testimony of Dr. Stanulis would have done nothing to rebut the inference that Bottrell intended to rob Hall.
Although Stanulis's testimony would have reflected on whether Bottrell had the requisite intent to murder, such intent to murder is not an element of felony murder. State v. Dennison, 115 Wn.2d 609, 627, 801 P.2d 193 (1990). Rather, the intent required to prove robbery is intent to deprive the victim of property. State v. Byers, 136 Wash. 620, 622, 241 P. 9 (1925); State v Carter, 4 Wn. App 103, 109, 480 P.2d 794, review denied, 79 Wn.2d 1001 (1971).
Since the {felony murder} statute does not require the state to prove the intent with which a murder is committed, when it is done in connection with the perpetration of a robbery, mere lack of an intent to rob at the moment of the killing is not a defense. State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973).
A homicide is committed in connection with the perpetration of a felony if it is in 'close proximity in terms of time and distance between the felony and the homicide and there was no break in the chain of events from the inception of the felony to the time of the homicide.' Charles E. Torcia, 2 Wharton's Criminal Law sec. 150 at 312-14 (15th ed. 1994) (footnotes omitted). That the homicide preceded the final act of the robbery, namely the theft, does not fragment the chain of events. State v. Temple, 5 Wn. App. 1, 8, 485 P.2d 93 (1971). It is enough that Bottrell admitted to a cellmate that she went to Hall's house to steal from him, he tried to stop her and called police, and the deadly fight ensued. The other physical evidence is consistent with this explanation by Bottrell.
In determining whether sufficient evidence supports a conviction, '{t
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