Clyde Leech was convicted in the Superior Court of King Count of first-degree felony murder. Defendant appealed.

The Court of Appeals reversed and remanded. The state sought discretionary review. The Supreme Court of Washington reversed the Court of Appeals and affirmed the conviction.

Facts of Case At issue in this case is whether a fire fighter’s death occurred in the furtherance of an arson, thus rendering the arsonist liable for the crime of first degree felony murder.

On July 12, 1987, a fire broke out at the largely abandoned Crest apartment building in Seattle. Robert Earhart was one of nearly 70 City of Seattle fire fighters who responded to the alarm. Fire investigators suspected arson, and Clyde Dale Leech, the defendant herein, was arrested at the scene.

The substantial evidence against the defendant included his having been seen leaving the Crest just minutes before smoke emerged from the vacant area he had been in.

Robert Earhart died of carbon monoxide poisoning while fighting the fire inside the Crest. When his body was found, his breathing apparatus was on the floor beside him and the air bottle read at or near zero. Subsequent tests showed that the breathing apparatus was not defective but was simply empty.

The defendant was charged with first-degree felony murder. His main defense was that the negligence of Earhart and the Seattle Fire Department, rather than the arson, was the proximate cause of Earhart’s death. A safety inspector for the Washington State Department of Labor and Industries testified that if Earhart had obeyed state safety regulations and gotten a new air bottle when the alarm in his breathing apparatus sounded, his death could have been avoided. (The apparatus was designed to sound an alarm when less than 5 minutes of oxygen remained in the air bottle.)

. . . The jury found the defendant guilty of first-degree felony murder, which is statutorily defined in this case as a death that is caused “in the course of and in furtherance of” first degree arson.

Issue Did the fire fighter’s death occur in the furtherance of the arson as required by the felony murder statute? Decision CONCLUSION. A death that is caused by an arson fire before it is extinguished occurs in furtherance of the arson and renders the arsonist liable for felony murder.

The statute defining the crime of first-degree felony murder provides that a person is guilty of first-degree murder when: He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; . . . RCW 9A.32.030(1) (c) (part).

The defendant claimed before the Court of Appeals that the felony murder statute was inapplicable to his case because (1) Earhart’s negligence was not a “specifically foreseeable” result of the arson; (2) the arson fire was not the proximate cause of Earhart’s death; and (3) Earhart’s death was not caused in the course of and in furtherance of the arson.

We agree with the Court of Appeals disposition of the defendant’s first two contentions. With regard to the claim that Earhart’s alleged negligence was not foreseeable, the court noted that RCW 9A.48.020 defines first-degree arson as including fires that are knowingly and maliciously set which are “‘manifestly dangerous to any human life, including firemen’”. In addition, the court cited its holding in State v. Levage, 23 Wash. App. 33, 35 (1979):

“experience teaches that one of the certainties attendant upon a hostile fire is that firemen will be called and will come. Danger inheres in fire fighting. In setting a hostile fire, the arsonist can anticipate that firemen will be endangered.”

. . . It does not seem to us that human error in fighting a fire is an extraordinary occurrence. The implication of the defendant’s argument is that an arsonist is entitled to have his fire fought in a perfect, risk-free manner by a fire department; this is not the law. Thus, the Court of Appeals properly rejected the contention that the defendant was not guilty of felony murder because Earhart’s alleged negligence was not specifically foreseeable.

We also agree with the Court of Appeals conclusion that the arson fire proximately caused Earhart’s death. We find it sufficient to simply note here that the fire fighter’s alleged negligence in using his breathing apparatus was not the sole cause of his death. Since his failure to use the apparatus would not have killed him had the defendant not set the arson fire, the defendant’s conduct in setting the fire was a proximate cause of Earhart’s death.

We next turn to the Court of Appeals analysis regarding the defendant’s third contention: whether Earhart’s death was caused “in the course of and in furtherance of” the arson. The Court of Appeals held that Earhart’s death clearly occurred “in the course of” the arson, i.e., during the fire. It concluded, however, that the death did not occur “in furtherance of” the arson, since the defendant did not cause Earhart’s death in acting to promote or advance the arson: “by the time Earhart arrived, the fire was well under way and [the defendant] had left the premises. Thus, [the defendant] did not cause Earhart’s death ‘in furtherance’ of the arson.” It is this conclusion that is at issue.

A homicide is deemed committed during the perpetration of a felony, for the purpose of felony murder, if the homicide is within the “res gestae” of the felony, i.e., if there was a close proximity in terms of time and distance between the felony and the homicide.

The defendant argues (and the Court of Appeals apparently agreed) that the act of arson is complete once a fire is set and has a potential for harm and that any subsequent death caused by the still-burning fire is not sufficiently related in time to the arson to occur within the res gestae of that felony or in the furtherance thereof. According to this argument, the arsonist is not liable for felony murder unless he or she accidentally kills someone who is attempting to prevent the arsonist from starting the fire.

This argument is addressed by a leading treatise in discussing the time connection required by felony murder statutes that use phrases such as “in the furtherance of” and “in the commission of”.

Burglary is committed when the defendant breaks and enters the building with the appropriate intent; nothing further, like the caption and asportation necessary for robbery, is required for burglary. Arson is committed when the building first catches fire; the further consumption of the building by fire adds nothing further to the arson already committed. Rape is committed upon the first penetration; further sexual activity by the defendant after this initial connection adds nothing to the crime of rape already committed.

Yet for purposes of the time connection implicit in the expression “in the commission of,” the crimes of arson, burglary and rape may be considered to continue while the building burns, while the burglars search the building and while the sexual connection is maintained. 2 W. LaFave & A.
Scott § 7.5, at 224–25.
. . . To apply the “in furtherance of” language only to the time in which an arson fire is being set is to achieve an absurd consequence, i.e., a situation in which an arsonist whose fire kills will almost never be liable for murder.
We hold that because the fire fighter’s death in this case occurred while the arson fire was still engaged, the death was sufficiently close in time and place to the arson to be part of the res gestae of that felony. Thus, the death of Seattle fire fighter Robert Earhart occurred “in furtherance of” the arson and the defendant was properly charged and convicted of the crime of felony murder; the Court of Appeals holding to the contrary is reversed.
. . . The Court of Appeals is reversed and the defendant’s conviction of the crime of first-degree felony murder is affirmed.

Questions:-

1. What is the predicate felony involved in this case? It is always “inherently dangerous”?
2. Explain the concept of res gestae and how it is relevant to the court’s decision.
3. Do you believe the defendant was the proximate cause of the firefighter’s death? Why or why not?