WPIC 155.00 Concluding Instruction—Lesser Degree/Lesser Included/Attempt

Use bracketed material as applicable. A bracketed sentence is provided for courts that provide jurors with forms for submitting questions during their deliberations. A sample form is set forth in Appendix G.

If this instruction is used for a lesser degree or lesser included offense, use WPIC 4.11 (Lesser Included Crime or Lesser Degree), with this instruction. Use WPIC 180.01 (Verdict Form A—General) and WPIC 180.05 (Verdict Form B—Lesser Degree/Lesser Included/Attempt) with this instruction if only one lesser crime is being submitted to the jury. If a third crime is also being submitted [for example, murder in the first degree, murder in the second degree, and manslaughter; or assault in the first degree, assault in the second degree, and simple assault], then also use WPIC 180.06 (Verdict Form C—Lesser Degree—Three Degrees) for the lowest degree and use the bracketed material in this instruction that refers to verdict form C.

If this instruction is used for an attempted offense, use WPIC 180.01 (Verdict Form A—General) and WPIC 180.05 (Verdict Form B—Lesser Degree/Lesser Included/Attempt) with this instruction. Use this instruction when an attempt to commit the crime charged is submitted to the jury. If the primary charge is an attempt to commit a crime, use WPIC 151.00 (Basic Concluding Instruction), instead.

All jurors to be present whenever jury is deliberating. The WPI Committee added the final sentence of the first paragraph to the instruction in 2018. A defendant has a right under the Washington Constitution, article I, sections 21 and 22, to have all jurors deliberate upon each question before the jury. State v. Lamar, 180 Wn.2d 576, 327 P. 3d 46 (2014) (error for court to instruct jury to bring newly seated alternate juror “up to speed” on deliberations when alternate seated after deliberations had begun). However, mere speculation that during deliberations a juror might have left the jury deliberation room, for example to use the restroom, does not require reversal. State v. St. Peter, 1 Wn.App 2d 961, 963, 408 P.3d. 361, review denied 190 Wn.2d 1026 (2018). It is not manifest error for the trial court not to sua sponte instruct that they must deliberate only when all jurors are present. State v. Sullivan, 3 Wn.App.2d 376, 415 P.3d 1261 (2018). Nonetheless, the WPI Committee is satisfied that it is better practice to caution the jury that deliberations can occur only when all members of the jury are present.

Bias demonstrated by juror during deliberations. In 2018, the WPI Committee added the second paragraph to the instruction, which encourages all members of the jury to be responsible for ensuring that decisions are made based solely on the evidence and not upon preconceived biases or prejudices. The United State Supreme Court in Peña-Rodriguez v. Colorado, U.S. , 137 S.Ct. 855, 869, 197 L.Ed.2d 107 (2017), concluded that the general rule against impeaching a jury verdict must fall when a juror has indicated that he or she relied on racial animus or stereotypes in reaching the verdict. In Turner v. Stime, 153 Wn.App. 581, 222 P.3d 1243 (2009), the court concluded that statements of clear racial bias made by a juror concerning plaintiff's counsel do not “inhere in the verdict” and that it was proper for the trial court to grant a new trial upon proof that such statements were made.

For a discussion of other issues involving both conscious and unconscious bias, see the Comment to WPIC 1.01 (Advance Oral Instruction—Beginning of Proceedings).

The statutes. RCW 10.61.003 and RCW 10.61.010 provide that a jury may find a defendant guilty of a lesser degree or of an attempt to commit the offense. RCW 10.61.006 allows conviction of a lesser included crime.

When to use the instruction. This instruction must be given whenever the court instructs on crimes of a lesser degree or on a lesser included offense.

Failure to reach verdict on greater offense. This instruction includes the statement “if you cannot agree on a verdict, do not fill in the blank provided in Verdict Form .” If the jury fails to reach a verdict on the crime charged, the trial court should inquire as to the probability of reaching a verdict. If the court engages in such an inquiry, it should address the jury only by reading WPIC 4.70 (Probability of a Verdict).

Full and careful consideration. This instruction addresses State v. Watkins, 99 Wn.2d 166, 660 P.2d 1117 (1983), by including the phrase “or if after full and careful consideration of the evidence you cannot agree on that crime.” See also State v. Labanowski, 117 Wn.2d 405, 816 P.2d 26 (1991) (citing with approval the revised pattern instruction using this phrase).

Distinguishing Petrich scenarios. The Watkins case is concerned with the situation in which the defendant is alleged to have committed a single act but is charged with two or more crimes as a result of that act. This situation should not be confused with the opposite situation, when the defendant is alleged to have committed two or more criminal acts, but is charged with only one crime.

The latter situation is governed by different rules. In general, when the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct, jury unanimity must be protected. The State may, in its discretion, elect the act upon which it will rely for conviction. If the State makes no election, the jury must be instructed that in order to convict the defendant, all twelve jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). For further details see WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction).

Further discussion of the law relating to lesser offenses. See the Comment to WPIC 4.11 (Lesser Included Crime or Lesser Degree), for a discussion of jury instructions on lesser included crimes and lesser degree crimes. Included there is a discussion of the necessary legal and factual predicates for instructing jurors on these topics.

Procedures for handling questions from a deliberating jury. The instruction explains for jurors, before they begin their deliberations, the steps they must take if they need to ask the court a question during their deliberations. When deliberating jurors send out such a question, the judge should number the question and review it with the lawyers outside the presence of the jury. The judge should respond to the question in open court or in writing (if the question relates to a point of law, the answer should be written).

If the jury is brought back into open court, the lawyers and the defendant should have the opportunity to be present. The judge should supplement any written response by telling jurors to consider the response together with all the other written instructions in the case. The judge should enter the question, response, and any objections in the record. The judge should carefully refrain from appearing to comment on the evidence, coerce a verdict, or be unfairly prejudicial to one side or the other. For more complete discussions of the issues involved in handling questions from deliberating jurors, see CrR 6.15(f); CrRLJ 6.15(e); Ferguson, 13 Washington Practice: Criminal Practice and Procedure §§ 4413, 4610 and 4611 (3d ed.) (regarding procedures for communicating with jurors during deliberations); State v. Koontz, 145 Wn.2d 650, 41 P.3d 475 (2002) (regarding repeating testimony for deliberating jurors); and WPIC 4.68 (regarding additional jury instructions), WPIC 4.68.01 (regarding changed instructions), WPIC 4.70 (regarding inquiring as to the probability of a verdict), and WPIC 4.81 (regarding deadlocked juries).

Question from deliberating jury—Presence of counsel and defendant. A defendant has a constitutional right to be present at every stage of a trial. This includes the right to be present for communications between the court and jurors after deliberations have begun. See State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988) (constitutional right to be present for return of verdict); State v. Caliguri, 99 Wn.2d 501, 664 P.2d 466 (1983) (stating, in a case involving replaying testimony for a deliberating jury, that “[i]t is settled in this state that there should be no communication between the court and jury in the absence of the defendant”); State v. Shutzler, 82 Wash. 365, 144 P. 284 (1914) overruled on other grounds by State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011); State v. Burdette, 178 Wn.App. 183, 313 P.3d 1235 (2013) (constitutional right to be present for discussion of court's response to jury's communication requesting guidance about potential deadlock); see also U.S. v. Treatman, 524 F.2d 320 (8th Cir. 1975) (stating that “it is settled law that communications between the judge and the jury in the absence of and without notice to defendant and his counsel are improper,” and “[t]he appellant's right to be present is constitutionally guaranteed by both the Fifth and Sixth Amendments to the federal constitution”); see also CrR 3.4(a) (“defendant shall be present … at every stage of the trial … except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown”); CrRLJ 3.4(a) (same).

Bailiff's communications with deliberating jurors. Bailiffs are prohibited from any communications with deliberating jurors that may affect the case. CrR 6.7; CrRLJ 6.7; see, e.g., State v. Booth, 36 Wn.App. 66, 671 P.2d 1218 (1983) (court should have granted a mistrial after the bailiff had an unauthorized conversation with deliberating jurors about why a certain witness had not testified).

The court rule expressly allows the bailiff to ask jurors if they have agreed upon a verdict and to allow communication upon order of the court. CrR 6.7; CrRLJ 6.7. Moreover, the bailiff may communicate with deliberating jurors in order to take care of housekeeping needs, eating, lodging, personal arrangements, and family messages for jurors. See State v. Smith, 43 Wn.2d 307, 261 P.2d 109 (1953); State v. Carroll, 119 Wash. 623, 206 P. 563 (1922).

Improper communications with deliberating jurors—Harmless error. Washington courts have adopted a harmless error standard for determining whether improper communication between the court and a deliberating jury requires reversal. See State v. Caliguri, 99 Wn.2d 501, 664 P.2d 466 (1983); State v. Langdon, 42 Wn.App. 715, 713 P.2d 120 (1986); State v. Safford, 24 Wn.App. 783, 604 P.2d 980 (1979); State v. Saraceno, 23 Wn.App. 473, 596 P.2d 297 (1979); State v. Russell, 25 Wn.App. 933, 611 P.2d 1320 (1980).

Further discussion of background and procedures for this instruction. See the Comment to WPIC 151.00 (Basic Concluding Instruction).