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Washington v. Creekmore11/6/1989
r. They were told that Eli was dead. They returned to the Creekmore house and went to bed. Mary was crying. Creekmore told her to shut up and to go to sleep.
An autopsy revealed a ruptured bowel caused by blunt trauma. The rupture caused an infection which led to septic shock and cardiac arrest. The force required to cause the rupture was more consistent with a kick than a punch.
One of Creekmore's friends testified that Creekmore had a powerful kick. Creekmore hurt this person in a sparring match and "whooped" three others "pretty good." Creekmore's friend recalled a time when Creekmore kicked him in the arm and drew blood. He said it takes "pretty good control" to break the skin without breaking the bone as well.
Felony Murder
A person is guilty of second degree felony murder if he commits any felony (other than those supporting a conviction of first degree felony murder) and in the course and in furtherance thereof he causes the death of another. RCW 9A.32.050(1)(b). Criminal mistreatment and second degree assault are both felonies. RCW 9A.42.030(2); 9A.36.021(2). As such, they will support a charge of second degree felony murder.
Creekmore contends that felony murder based on criminal mistreatment is the same as manslaughter. Felony murder is a class A felony with a seriousness level of 12; manslaughter is a class B felony with a seriousness level of 9. RCW 9A.32.050(2), .060; RCW 9.94A.310-.320. When the same conduct constitutes different crimes with different punishments, the result is a denial of equal protection. State v. Zornes, 78 Wash. 2d 9, 475 P.2d 109 (1970); Olsen v. Delmore, 48 Wash. 2d 545, 295 P.2d 324 (1956). However, no
constitutional defect exists when the crimes have different elements, or when one is a lesser included offense of the other. State v. Wanrow, 91 Wash. 2d 301, 312, 588 P.2d 1320 (1978). That is the case here. Any recklessly caused death establishes first degree manslaughter, RCW 9A.32.060(1)(a), whereas felony murder by criminal mistreatment depends on three additional elements: (1) the defendant must be a parent or custodian of the victim; (2) the victim must be a child or dependent; and (3) the death must be caused by withholding a basic necessity of life -- in this case, health care. RCW 9A.42.030(1); .010(1). Because the elements of the two crimes are different, there is no denial of equal protection. In re Taylor, 105 Wash. 2d 67, 68-69, 711 P.2d 345 (1985); State v. Wanrow, supra.
Our Supreme Court has repeatedly held that assault will support a charge of second degree felony murder. See State v. Wanrow, supra; State v. Thompson, 88 Wash. 2d 13, 558 P.2d 202, appeal dismissed, 434 U.S. 898 (1977); State v. Harris, 69 Wash. 2d 928, 421 P.2d 662 (1966). In his brief, Creekmore "respectfully submits that these holdings are erroneous and urges this Court to adopt the merger doctrine adopted by every other state in the country." However, this court may not reconsider decisions of our Supreme Court. See Hamilton v. Department of Labor & Indus., 111 Wash. 2d 569, 571, 761 P.2d 618 (1988); State v. Gore, 101 Wash. 2d 481, 487, 681 P.2d 227, 39 A.L.R.4th 975 (1984).
Exceptional Sentence
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