explaining that, where the restraint employed is necessary to complete a different offense, the result should be “a merger which extinguishes any separate kidnapping offense”
How later courts described this case
- explaining that, where the restraint employed is necessary to complete a different offense, the result should be “a merger which extinguishes any separate kidnapping offense”
- agreeing with Justice Utter’s dissent that “the mere incidental restraint and movement of a victim which might occur during the course of a murder are not indicia of genuine kidnapping” (some emphasis added)
- agreeing with Justice Utter's dissent that uthe mere incidental restraint and movement of a victim which might occur during the course of a murder are not indicia of genuine kidnapping" (emphasis added)
- when statutory language is plain, the meaning must be derived from the wording itself, and there is no room for judicial interpretation
Written by the judges who cited it.
The opinion
Stafford, J.
(dissenting in part) — I concur with the majority's disposition of the Miranda, equal protection, and death penalty issues. I dissent from the majority's analysis of kidnapping under RCW 9A.32.045, the aggravated murder statute.
For there to be a proper instruction on aggravated murder in the first degree which, under the circumstances at issue here, requires first-degree murder to be committed in the course of or furtherance of kidnapping, there must be substantial evidence of that aggravating circumstance. I agree with the dissent that there is not substantial evidence of kidnapping. However, I would not interpret the requirements of RCW 9A.32.045(7) as broadly.
A person commits kidnapping when he intentionally abducts another in one of two ways: (1) restraining the victim by secreting or holding him in a place where he is not likely to be found; or (2) restraining the victim by using or threatening to use deadly force. For the reasons discussed in the dissent, I would hold the deadly force contemplated by RCW 9A.40.010(2)(b) is absent in the instant case.
Further, I agree with the dissent that the majority's construction of RCW 9A.40.010(1) will lead to absurd results if nonsubstantial restraint of a victim is characterized as kidnapping. Moreover, the majority's analysis fails to recognize the spirit and intent of the legislature's effort in enacting *448 the kidnapping statute and particularly its inclusion of kidnapping as one of the attendant circumstances that elevates murder in the first degree to aggravated murder. The creation of the crime of aggravated murder and the severity of the punishment attached thereto indicate that only substantial movement or isolation independent of the murder itself is contemplated by the statute. Under the bare facts of this case, in the absence of the murder committed, it is highly improbable a prosecutor would have been permitted to go to the jury on a kidnapping charge.
I agree with the dissent that the mere incidental restraint and movement of a victim which might occur during the course of a murder are not indicia of genuine kidnapping. At best they are a part of the murder itself. In characterizing the movement and restraint here as incidental, I do not mean to suggest, as the dissent seems to indicate, that under every conceivable set of facts a movement of 20 feet or secreting in a stairwell would be incidental. That which constitutes incidental movement is not solely a matter of measuring feet and inches. Rather it is a determination made under the facts of each case, in light of the totality of surrounding circumstances. This characterization is as much a consideration of the relation between the restraint and the murder as a measure of the precise distance moved or place held. Thus, it involves evaluation of the nature of the restraint in which distance is but one factor to be considered.
In the instant case there is no substantial evidence of restraint of the victim by secreting or holding her in a place where she was unlikely to be found.
Hicks, J., concurs with Stafford, J.