WPIC 30.00 Aggravated First Degree Murder—Introduction

Several sections of RCW Chapter 10.95 refer to the crime of “aggravated first degree murder.” See RCW 10.95.030, 10.95.040, 10.95.050. It is not clear, however, whether aggravated first degree murder is a separate crime, or an aggravated form of the crime of first degree murder. In different contexts, it has been characterized as both.

In State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985), the Washington Supreme Court held that the statutory aggravating circumstances listed in RCW 10.95.020, which raise premeditated first degree murder to aggravated first degree murder, are “aggravation of penalty factors” and are not elements of a crime in the usual sense. The court held that aggravating circumstances need not be set out in the “to convict” instruction, if “the jury is otherwise properly instructed as to how the existence of any such aggravating circumstance is to be determined.” State v. Kincaid, 103 Wn.2d at 307. The court also stated that although it is conceptually preferable to have the jury return a special verdict on the alleged aggravating circumstances, it would not be error to include “any alleged aggravating circumstance as an element of the offense.” State v. Kincaid, 103 Wn.2d at 313.

In subsequent cases, the United States Supreme Court rejected the distinction between “elements” and “aggravation of penalty factors.” See Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 496, 120 S.Ct. 435, 147 L. Ed.2d 435 (2000). The Washington Supreme Court nonetheless continued to approve the use of a separate jury instruction on aggravating circumstances. “Apprendi and its progeny do not require a specific format for the jury to conclude the existence of facts raising a punishment beyond its statutory maximum; it requires a jury make the decision based on the reasonable doubt standard.” State v. Mason, 160 Wn.2d 910, 937, 162 P.3d 396 (2007).

More recently, however, the Washington Supreme Court rejected the analysis of Kincaid for double jeopardy purposes. In that context, the court held that the aggravating circumstances are “elements of the offense of aggravated first degree murder.” If a jury finds that aggravating circumstances have not been proved, that finding precludes retrial on the existence of those circumstances. State v. Allen, 192 Wn.2d 526, 431 P.3d 117 (2018).

In view of Kincaid, and Mason, the WPI Committee has declined to set forth an instruction that combines the elements of premeditated first degree murder with the aggravating factors listed in RCW 10.95.020. See WPIC 30.02 (Aggravated First Degree Murder—Elements). Instead, the WPI Committee has drafted an instruction that separately sets forth the aggravating factors in RCW 10.95.020 for the jury. See WPIC 30.03 (Aggravated First Degree Murder—Aggravating Factors). Judges should nevertheless consider whether this is the correct approach in light of Allen.

In order to find a defendant guilty of premeditated first degree murder with aggravating circumstances, the jury must determine whether the defendant is guilty of premeditated first degree murder. If the defendant is found guilty of premeditated first degree murder, the jury must then determine whether one or more statutory aggravating circumstances exist. If the jury finds that there are no aggravating circumstances, the defendant is sentenced under the Sentencing Reform Act. See RCW 9.94A.515 and State v. Hawkins, 53 Wn.App. 598, 769 P.2d 856 (1989). If the jury finds that aggravating circumstances exist, an adult defendant is sentenced to a mandatory term of life imprisonment without the possibility of release or parole. RCW 10.95.030(1). If the crime was committed when the defendant was less than 18 years old, the defendant is sentenced to an indeterminate life term. RCW 10.95.030(3).

Because the death penalty is no longer available, since the statutory procedures have been held to be unconstitutional as administered. State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018).

If the crime was committed when the defendant was less than 18 years old, the defendant is sentenced to an indeterminate life term. RCW 10.95.030(3). The death penalty is no longer available, since the statutory procedures have been held to be unconstitutional as administered. State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018).