Because of a legal error, Michael D. Collins, a Vancouver man who brutally beat a cross-country skier in Skamania County in 2009, has had his attempted murder conviction tossed out.
Still in prison on a first-degree robbery conviction related to the case, Collins could go free in six years — as opposed to 25 years.
That’s because the Court of Appeals on July 19 reversed Collins’ conviction, deciding that prosecutors charged him with a nonexistent crime, attempted felony murder.
The case now goes back to Skamania County Superior Court for Collins to be resentenced.
Still, Skamania County Prosecutor Adam Kick said he’s not sure he can legally recharge Collins.
“If we can think of a way around it, we will. Mr. Collins is a very dangerous person,” said Kick, who wasn’t in office at the time of trial. “We are really disappointed about this result.”
In a 3-0 unpublished opinion, the appellate court said prosecutors incorrectly charged Collins. There is no such thing as attempted felony murder, although there is felony murder.
Felony murder is different than first- and second-degree murder in that it means a defendant killed someone in the course of committing a separate felony (in this case, robbery.) Because felony murder is not an intentional act, the panel of judges ruled that it can’t be an attempted crime.
John Hays, Collins’ Longview appellate attorney, said Monday that he’s baffled that prosecutors chose the nonexistent crime, when there were other charges that could have fit, such as attempted murder by intent or first-degree assault.
Hays said it would have taken mere minutes for prosecutors to amend the charge.
“I have never seen such a bizarre charge in my life,” Hays said. “Ultimately, the error has to fall on the shoulders of the elected prosecutor. I don’t know what the logic was.”
When reached by telephone Monday, Peter Banks, the elected Skamania County prosecutor at the time of trial, referred all questions to his former deputy prosecutor, Chris Lanz. Banks said he had no part in making the charging decision.
Lanz, who no longer works as a deputy prosecutor, said he was not aware attempted felony murder was not a charge. In 2008, the state Supreme Court made a ruling to say a defendant cannot be charged with such a crime.
It is not yet known whether the Skamania County Prosecutor’s Office will refile different charges, such as intentional attempted murder or first-degree assault. But Kick said he consulted several veteran appellate attorneys throughout the state who didn’t think he lawfully could. That’s because charges related to one criminal act have to be filed at the same time, making it unlawful to keep heaping charges on a defendant.
Kick said the reversal was a huge blow to his office. He pointed out that the mistake went unnoticed at the time by the defense attorney, Michael Thompson of Hood River, Ore., and former Judge Thompson Reynolds.
“It wasn’t just the prosecutor who didn’t realize it,” Kick said. “The defense attorney didn’t realize it. The judge obviously didn’t notice it. Nobody noticed it.”
The case of Collins and his teen son, Teven Collins, landed the pair on the TV show, “America’s Most Wanted.” The destitute father had taken his son to Dougan Falls in February 2009, where the two lived off Top Ramen noodles and oranges. When the food ran out, they robbed and reportedly tried to kill skier Kevin Tracey of Washougal for his wallet and car keys.
After accosting Tracey in a snowy path, they beat him with a club and choked him with rope until he blacked out.
Though Tracey was left for dead in the snow, he survived after three hikers found him and called for help.
The two were arrested weeks later in Ensenada, Mexico, following a tip.
Michael Collins was convicted in February 2010 by a Skamania County jury, which deliberated only an hour before rendering its verdict.
Teven Collins took a plea deal in exchange for his testimony against his father. He pleaded guilty to attempted second-degree murder, an actual charge, and was sentenced to eight years in prison. Teven is at Airway Heights Corrections Center near Spokane and Michael is at Washington State Penitentiary in Walla Walla.
Laura McVicker: 360-735-4516; Twitter: col_courts; firstname.lastname@example.org.