WPIC 300.50.01 Special Verdict Form—Aggravating Circumstance—Accomplice Liability—Unitary Trial

This version of the verdict form should be used if the defendant could have been convicted as an accomplice.

Use a separate special verdict form per count on which the State alleged the existence of an aggravating circumstance.

Use the questions pertaining to the aggravating circumstances that have been alleged. For most circumstances, one of the questions asks whether the defendant personally committed the aggravating factor. Use this question if it is supported by the evidence. Always use the questions pertaining to acts of an accomplice and the defendant's knowledge of these acts. Use other bracketed material as applicable.

When using the bracketed question on the level of bodily harm, select the appropriate level of harm and insert the number of the instruction that defines that level of harm.

Use this special verdict with WPIC 300.08 (Aggravating Circumstances—Accomplice Liability). For a list of other instructions to be used along with this special verdict, see WPIC 300.01 (Aggravating Circumstance Procedure—Checklist for Written Instructions—Unitary Trials—Bifurcated Trials—Stand-Alone Sentencing Proceedings).

The cross-references to other pattern instructions are included to assist practitioners in drafting instructions for a particular case. They are not to be included in the instruction that goes to the jury.

This instruction is based on State v. Hayes, 182 Wn.2d 556, 566, 342 P.3d 1144 (2015).

In Hayes, the court held that when aggravating circumstances are phrased in relation to “the current offense,” they apply to an accomplice only if the jury finds that the defendant had some knowledge that informed that factor. The court reasoned that factors phrased in this way potentially permit imposing an exceptional sentence more broadly than would be consistent with the SRA. This finding of knowledge ensures that the defendant's own conduct formed the basis of the sentence.

In Hayes, the instructions permitted the jury to convict Hayes either as principal or accomplice, but the evidence was insufficient to find that Hayes was convicted as a principal. State v. Hayes, 182 Wn.2d at 562 n.3. Because it is not possible to predict whether a jury will convict a defendant as a principal or as an accomplice for the charged crime, the special verdict form is drafted to insure that the jury finds either that the aggravating circumstance is based upon the defendant's own conduct or the defendant's knowledge of the acts of his or her accomplice. In accordance with Hayes, this verdict form generally asks the jury to answer three questions for each aggravating circumstance. The first question is whether the defendant personally committed the acts giving rise to the aggravating circumstance. If the answer is yes, the defendant is subject to an exceptional sentence without further findings. Otherwise, the jury must determine (1) whether an accomplice committed those acts and (2) if so, whether the defendant knew that the accomplice was committing or would commit those acts.

As yet, courts have had little opportunity to apply the analysis of Hayes. As a result, it is not always clear exactly what facts the defendant needs to know to be subject to an exceptional sentence.

There are two aggravating circumstances that are based solely on the defendant's knowledge of specified facts: victim vulnerability (WPIC 300.11) and commission of a violent crime against a pregnant victim (WPIC 300.12). For these circumstances, the standard for personal and accomplice liability appears to be identical. The questions in this verdict form are therefore identical to those in WPIC 300.50 (Special Verdict Form—Aggravating Circumstances—Unitary Trial).

The aggravating circumstance for future dangerousness (WPIC 300.24) refers to the defendant's amenability to treatment. Since that fact specifically applies to the defendant, it does not appear that accomplice liability would apply to this aggravating circumstance. Consequently, the questions in this verdict form are again identical to those in WPIC 300.50 (Special Verdict Form—Aggravating Circumstances—Unitary Trial).

There are two other aggravating circumstances that could likewise be viewed as involving the defendant's personal culpability: egregious lack of remorse (WPIC 300.26) and rapid recidivism (WPIC 300.29). There is, however, no case law precluding accomplice liability for these factors. Absent further guidance from the courts, this verdict form asks the usual questions with regard to accomplice liability for these circumstances.