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WPIC 26.04.01 Felony Murder—Participant—Definition

11 WAPRAC WPIC 26.04.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 26.04.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part V. Crimes Against Life
WPIC CHAPTER 26. Murder, First Degree
WPIC 26.04.01 Felony Murder—Participant—Definition
A “participant” in a crime is a person who is involved in committing that crime, either as a principal or as an accomplice. [A victim of a crime is not a “participant” in that crime.]
NOTE ON USE
Use this instruction as appropriate with WPIC 26.04 (Murder—First Degree—Felony—Elements) or WPIC 27.04 (Murder—Second Degree—Felony—Elements).
Use bracketed material as applicable.
COMMENT
RCW 9A.08.020(5)(a).
The word “participant” is not defined in the first degree murder statute or in the second degree murder statute. In State v. Toomey, 38 Wn.App. 831, 690 P.2d 1175 (1984), the Court of Appeals stated that “[i]n the context used in [RCW 9A.32.030(1)(c)], and by dictionary definition, [“participant”] obviously means another person involved in the crime — i.e., another principal or an accomplice.” State v. Toomey, 38 Wn.App. at 840.
The Supreme Court approved of this definition in State v. Carter, 154 Wn.2d 71, 79, 109 P.3d 823 (2005), stating “it is clear that a ‘participant’ must either be a principal (i.e., one who actually participates directly in the commission of the crime) or an accomplice (i.e., one who meets the statutory definition of accomplice).” The court held that
where an individual who is charged with first degree murder based on the felony murder provision of the first degree murder statute has not participated directly in the commission of the predicate felony, the State must establish that he or she was an accomplice to the predicate felony in order to sustain a conviction. Only when his or her complicity in the underlying felony has been established does the coparticipant clause of the felony murder provision of the first degree murder statute operate to impute criminal liability for the homicide committed in the course of or in furtherance of the felony.
State v. Carter, 154 Wn.2d at 81.
While it is not error for a court to not define the term “participant,” providing a definition may assist the jury. When the defendant and the decedent were engaged in an altercation when the lethal wound was inflicted, the term “participant” should always be defined.
Consistent with RCW 9A.08.020(5)(a), the Court of Appeals has held that the victim of an assault is not a “participant” in the assault for purposes of the felony murder statutes. See generally, State v. Goodrich, 72 Wn.App. 71, 75, 863 P.2d 599 (1993), overruled on other grounds by State v. Ramos, 124 Wn.App. 334, 101 P.3d 872 (2004); State v. Langford, 67 Wn.App. 572, 579–80, 837 P.2d 1037 (1992); State v. Brigham, 52 Wn.App. 208, 210, 758 P.2d 559 (1988).
In Brigham, the defendant and the victim were “engaged in an escalating physical conflict” with the victim the more aggressive of the two until the defendant produced a knife and stabbed the victim to death. State v. Brigham, 52 Wn.App. at 209. Brigham was convicted of second degree felony murder based on the underlying assault felony. On appeal, the defendant contended that he could not be guilty of felony murder because the victim was a participant. The court disagreed. “The facts also show that [the victim] was not a ‘participant’ in the assault upon himself; he may have started the fight which led to his death, but he was not a ‘principal or accomplice’ in the assault.” State v. Brigham, 52 Wn.App. at 210 (citing Toomey). The court held that because the victim was not a participant, the omission of the nonparticipant element from the instructions was harmless error. State v. Brigham, 52 Wn.App. at 210.
In Langford, the victim and the defendant's son had been in an earlier fight. The defendant father (Langford) told his son to fight the victim again. With Langford's encouragement, the son fought with the victim and when the victim “was getting the better of him in the fight, [the son] reached into his back pocket, pulled out a knife, and stabbed [the victim] in the chest.” State v. Langford, 67 Wn.App. at 577. Langford was found guilty as an accomplice to second degree felony murder. State v. Langford, 67 Wn.App. at 576–77. On appeal, Langford contended that it was error to not instruct the jury that it must find that the victim was not a participant in the crime that caused his death. The court held that it was harmless error to omit the element of nonparticipation on the grounds that the victim was not a participant in the stabbing and it was the stabbing that killed the victim. State v. Langford, 67 Wn.App. at 579. Additionally, the court stated that “[t]he term ‘participant’ does not encompass a victim who was acting in self-defense.” State v. Langford, 67 Wn.App. at 580.
[Current as of April 2019.]
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