GROUNDS FOR RELIEF
THE DEFENDANT-PETITIONER WAS TRIED AND CONVICTED OF MURDER IN THE FIRST DEGREE PREMISED ON TWO ALTERNATIVE SEPARATE AND DISTINCT CRIMES RCW 9A.32.020 (1) (a) AND RCW 9A.32.030 (1) (c) IN A SINGE COUNT OF THE INFORMATION WHICH IS LEGALLY INSUFFICIENT TO CONFER COMPETENT JURISDICTION TO THE SUPERIOR COURT IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
Defendant-Petitioner was tried and convicted of first degree premeditated murder and first degree felony murder with the first degree premeditated murder conviction being subject to imposition of life without possibility of parole pursuant to sentence enhancement under provisions of RCW 10.95.020, by using the first degree felony murder conviction as the aggravating factors required by RCW 10.95.020, which is in violation of both duplicity and multiplicity doctrines encompassed in the double jeopardy clause of the United States Constitution, see State v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757 26 L.Ed.2d 30 (1970):
The decision in Boston v. Maryland, 395 U.s. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) that the double jeopardy prohibition of the Fifth Amendment is applicable to the states through the Fourteenth amendment, has fully retroactive application.
The Supreme Court of Washington has been authorizing the unconstitutional practice of charging two separate and distinct criminal charges in a single count for more that twenty five years, see State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 (1990):
Count 1 of the fourth amended information charged Bowerman with the single crime of first degree murder. The count alleged two alternative ways of committing that single crime: (1) aggravated, premeditated murder, and (2) felonly murder. Premeditated murder and felonly murder are not separate crimes They are alternate ways of committing the single crime of first degree murder. State v. Ellison, 36 Wn.App. 564, 574-75, 676 P.2d 521, review denied, 101 Wn.2d 1010 (1984). Where there are alternate ways to commit a crime it is permissible to charge both alternatives in the same count.
One of the inherent legal insufficiencies of charging the separate and distinct crimes of first degree premeditated murder and first degree felony murder is that first degree premeditated murder requires premeditated intent and first degree felony murder requires the absence of the intent because first degree felony murder has the elemental requirement that the death was a natural and probable cause of the underlying felony, and not proximately caused by premeditated intent, see State v. Condon, 182 Wn.2d 307, 343P.3d 357n(2015):
For the purposes of a prosecution for first degree premeditated murder under RCW 9A.32.030 (1) (a) “premeditation” is the deliberate formation of and reflection on the intent to take a human life. It involves a mental process of deliberation, reflection, weighing, or reasoning for a period of time, however short, premeditation must involve more than a moment in time.
State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (2003) review denied 151 Wn.2d 1020, 91 P.3d 95 (2004):
Aggravated first degree murder and first degree felony murder are two different crimes, with different statutory elements. Aggravated first degree murder required proof of premeditated intent to kill while first degree felony murder requires proof of the mental state required by the underlying felony. The two crimes are not different means o committing murder; nor are they greater or lesser offenses.
Prejudice is inherent by charging the separate and distinct crimes of first degree premeditated murder in the first degree in a single count along with charging first degree felony murder, when as here, the elements of the first degree felony murder are subsequently used as aggravating factors for RCW 10.95.020 aggravating circumstances, to wit the during the course of, in furtherance of, or in immediate flight therefrom; which violates all three prongs of Duplicity, inter alia, defined in Blacks Law Dictionary as “(1) Dishonest behavior that is designed to deceive someone; deceitfulness; double dealing,” which is applicable in this case based on the State’s fraudulent charging of first degree felony murder as an alternative way to prove Murder in the First Degree, with purpose to confuse the jury into believing the vicarious culpability of first degree felony murder can be used for the direct responsibility requirement of RCW 10.95.020, cf., State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995):
For purposes of RCW 10.95.020 (9) which specifies crimes that constitute an aggravating circumstance when first degree murder was committed, in the course of, in furtherance of, or in immediate flight from the specified crime, the use of more than one such crime as an aggravating circumstance does not violate due process so long as the crimes are not based on the same aspect of the defendant’s conduct and are not themselves elements of aggravated first degree murder.
Said deceptive charging of two legally separate and distinct crimes has a different legal force and effect than charging two factually different ways to commit a single crime, i.e., charging two factually distinct ways of committing a single crime does not require unanimity whereas when as here, two separate and distinct crimes are charges as alternative ways of committing a single offense, subject to a single punishment, unanimity is a requirement for both premeditated murder in the first degree and first degree felony murder, engaging double jeopardy prohibitions for any subsequent application in support of RCW 10.95.020, see State v. Wright, 165 Wn.2d 783, 23 P.3d 1027 (2009):
A defendant charged and tried under multiple statutory alternatives experiences the same jeopardy as one charged and tried on a single theory. The defendant is in jeopardy of a single conviction and subject to a single punishment, whether the State charges a single alternative or several.
Which contradict the Washington Supreme Court’s own rulings that it is not unconstitutional or unlawful to charge first degree premeditate murder and the separate and distinct crime of first degree felony murder in the a single count. With a series of inconsistent application of the relevant legal principles, compare the inconsistent application of relevant legal principles in the following case authority, State v. Ellison, 36 Wn.2d App. 564, 66 P.2d 531, review denied, 101 Wn.2d 1010 (1984):
When a defendant is charged under a criminal statute that describes a single offense committable in more than one way, rather than separate and distinct offenses, jury unanimity is unnecessary as to the means but only as to the commission of the offense… Here, Ellison was charged with premeditated murder, RCW 9a.32.030 (1) (a), and felony murder, RCW 9a.32.030 (1) (c), both of which constitute first degree murder. See RCW 9A.32.030.
State v. Fortune, 77 Wn.App. 628, 893 P.2d 670 (1995) affirmed 128 Wn.2d 464, 909 P.2d 930 (1996):
Before a penalty for aggravated murder can be imposed, there must first be jury unanimity as to the premeditated means of committing first degree murder, under Washington law, therefore, it is not possible for defendant to receive a sentence for aggravated first degree murder.
State v. Johnson, 113 Wn.App. 482,_P.2d_ (2002):
The court found that alternate charges of intentional murder and felony murder constituted a single offense and properly entered judgment and sentenced Johnson for only one crime.
State v. Thompson, 60 Wn.App. 662, 806 P.2d 1251 (1991):
Since felony murder is not a lesser included offense of aggravated first degree murder, a defendant charged with both felony murder and aggravated first degree murder may plead guilty to felony murder when arraigned for the first time, however, such a plea would not preclude the prosecutor from pursuing the companion charge of premeditated first degree murder and from seeking the death penalty upon proof of aggravating circumstances.
A criminal defendant charged with both felony murder and aggravated first degree murder cannot avoid trail on the charge of aggravated first degree murder by pleading guilty to the charge of felony murder.
State v. Kron, 63 Wn.App. 688, 821 P.2d 1248 (1992):
As we have seen, aggravated murder itself is not a crime, but a means of enhancing the penalty for certain kinds of first degree murder. Obviously, the State cannot charge a crime without statutory authority.
First degree felony murder is not a lesser included offense of aggravated first degree murder, State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1995) cert. Denied 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996)
State v. Allen, No. 84384-0-II (2017):
Premeditated murder in the first degree with aggravating circumstances is not a crime in and of itself. The crime is premeditated murder in the first degree, which is accompanied by statutory aggravators. State v. Roberts, 142 Wn.2d 471, 501, 14 P.3d 713 (2000).
State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988):
Premeditated first degree murder is a lesser included crime of first degree aggravated murder but felony murder is not a lesser included of either such crimes; however, conviction of the uncharged, not lesser included crime of first degree felony murder, requires dismissal but the defendant can still be charged with first degree felony murder without violating double jeopardy prohibitions.
State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (2003) review denied 151 Wn.2d 1020, 91 P.3d 95 (2004):
Holding that the State’s separately charging the defendant with both aggravated first-degree murder, and first degree felony murder, rather than as alternative means of committing the same offense, did not violate double jeopardy protections.
Aggravated first degree murder and first-degree felony murder are two different crimes, with different statutory elements.
State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980):
The alternative ways of committing aggravated murder in the first degree are themselves separate and distinct criminal offenses.
The Supreme Court of Washington appears to lack understanding and/or legal competence regarding the legal fact that when as here, the separate and distinct cimes of felony murder is a legally insufficient alternative which is not applicable to RCW 10.95.020 because it is only applicable to RCW 9A.32.030 (1) (a), then the single crime charged, to wit, murder in the first degree, encompassing both alternative ways of committing said single crime must be vacated for lack of competent jurisdiction, see State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000):
Duplicity is the joining in a single count of two or more distinct and separate offenses and multiplicity is the charging of a single offense in several counts.
In other words, first degree felony murder cannot be used for a predicate offense to apply the aggravating factors of RCW 10.95.030, however the jury was confused into believing that the vicarious culpability theory of culpability in first degree felony murder applies to the direct criminal responsibility requirement of RCW 10.95.020, cf., State v, Allen, 182 Wn.2d 364, 341 P.3d 268 (2015):
A defendant may not be convicted as an accomplice on the basis of constructive knowledge of the principal’s intent to commit the crime. A finding of actual knowledge is required to convict a defendant as an accomplice.
Major participation by a defendant in the act giving rise to the homicide is required in order to execute a defendant convicted solely as an accomplice to premeditate first degree murder. Merely satisfying the minimal requirements of RCW 9A.08.020, the accomplice culpability statute, is insufficient to impose the death penalty under this section, the Eighth and Fourteenth Amendment and the cruel punishment clauses of the Washington State Constitution, State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (Wash. 2000):
In this case, additional constitutional and jurisdictional defects are present because the jury was instructed the RCW 9A.08.020 applied generally, thereby stacking vicarious culpability from said accomplice statute, upon the vicarious culpability encompassed in RCW 9A.32.030 (1) (c) first degree felony murder, and neither the vicarious culpability of RCW 9A.08.020 nor RCW 9A.32.030 (1) (c) are applicable to the direct culpability requirement of RCW 10.95.020 aggravating factors; compounded by the additional legal insufficiency in this case where the accomplice liability jury instruction omitted the elemental requirement that a principal committed the crime that the alleged accomplice is charged with aiding and abetting, for example:
They jury further found that Petitioner “Conley or an accomplice armed with a firearm at the time of the commission of the crime of felony murder in the first degree… ad defined in Instruction 16,” which reads:
A person commits the crime of felony murder in the first degree when he or an accomplice commits or attempts to commit the crime of robbery or residential burglary and in the course of or in furtherance of such crime or in immediate flight from such crime he or another participant causes the death of a person other than one of the participants.
JURY INSTRUCTION NO. 17
To convict the defendant of the alternative crime of felony murder in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt.
(1) That on or about March 31, 2006 Brian Swehla was killed;
(2) That the defendant was committing or attempting to commit the crime of either:
(a) robbery; or
(b) residential burglary;
(3)That the defendant or an accomplice cause the death of Brian Swehla in the course of or in furtherance of such crime or in immediate flight from such crime;
(4) That Brian Swehla was not a participant in the crime; and
(5) That the acts occurred in the State of Washington.
The Special Jury Verdict Forms asked the question: Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt? That the murder was committed in the course of, in furtherance of, or in immediate flight from the crimes of robbery? (with the same question asked for residential burglary).