WPIC 300.10 Aggravating Circumstance—Deliberate Cruelty [RCW 9.94A.535(3)(a)]

For the aggravating circumstance of deliberate cruelty, use the above instruction to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

With regard to the bracketed “normally associated” clause, see the Comment's discussion of atypicality.

RCW 9.94A.535(3)(a).

In State v. Gordon, 172 Wn.2d 671, 681, 260 P.3d 884 (2011), the defendants argued they were prejudiced by their trial counsel's failure to request an instruction defining deliberate cruelty for the jurors. The court declined to find that the defendants were prejudiced but indicated that “the better practice may be to request the pattern instructions when faced with aggravators” such as deliberate cruelty.

Deliberate cruelty—Pre-Blakely. The aggravating circumstance of deliberate cruelty has been part of the Sentencing Reform Act since it was first adopted in 1981. At that time, no comprehensive definition of “deliberate cruelty” had emerged from the decisions of other states with similar provisions. The generally accepted inquiry, still incorporated in this instruction, was whether the defendant's conduct was atypically egregious compared to what is inherent in all crimes in the particular category. David Boerner, Sentencing in Washington, §§ 9.6, 9.7, and 9.13(a) (LEXIS Publishing eds., 1985); State v. Payne, 45 Wn.App. 528, 531, 726 P.2d 997 (1986).

A definition of “deliberate cruelty” was first adopted by a Washington appellate court in State v. Strauss, 54 Wn.App. 408, 418, 773 P.2d 898 (1989). Combining elements from previous decisions, the Strauss definition consists of the first phrase of the definition incorporated in WPIC 300.10—the “gratuity” prong—but does not expressly mention the requirement that the conduct exceed that inherent in the typical instance of the crime in question—the “atypicality” prong. However, the court apparently considered the atypicality requirement to be inherent in the concept of gratuity, because the court found that the violence involved was not gratuitous and was conduct “of the type normally associated with this crime.”

After Strauss, appellate decisions have consistently referred to both prongs of the definition in reviewing exceptional sentences based on deliberate cruelty. See, e.g., State v. Copeland, 130 Wn.2d 244, 296, 922 P.2d 1304 (1996).

In State v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192 (2003), the Washington Supreme Court reiterated that both the “gratuity” prong and the “atypicality” prong are properly incorporated in the concept of deliberate cruelty. The opinion states each prong separately, but doing so appears to reflect the distinction between what is essentially a finding of fact, i.e., the “gratuity” prong, and a mixed question of fact and law, the “atypicality” prong. The latter is set forth in Tili as an expression of the general proposition, applicable to all aggravating circumstances, that an exceptional sentence may not be based on factors already considered by the Legislature in establishing the standard sentencing range. See State v. Ferguson, 142 Wn.2d 631, 649, 15 P.3d 1271 (2001).

Deliberate cruelty—Post-Blakely—Deciding atypicality. The revised statutory scheme's definition of deliberate cruelty likewise includes gratuity and atypicality components. Gratuity is a purely factual issue that falls squarely within the jury's fact finding role. Atypicality, however, is not. Under the statute, atypicality requires an analysis of not only whether the defendant's conduct exceeded the statutory elements, but also whether the defendant's conduct is “normally associated” with this crime, a determination that requires a comparison of the current offense with similar offenses. Juries are not in a good position to make this decision — they have information only about the current offense. For this reason, judges have traditionally decided these types of issues, such as the proportionality review under the death penalty statutes. It is not even clear how such evidence would be presented to the jury, other than perhaps through expert testimony. Adding to the problem is the legislative decision that deliberate cruelty issues are presumptively to be decided in the trial's guilt phase, rather than separated out until after the jury has independently decided guilt versus innocence. Legislators may not have intended these results. As a result, the pattern instruction was drafted with brackets around the “normally associated” language, so that trial judges will decide whether this is a jury issue under the statute and Blakely.

Applicable crimes. Although this aggravating circumstance is usually applied to crimes against persons, it can also apply to property crimes. State v. Manlove, 186 Wn.App. 433, 347 P.3d 67 (2015).

Presumption of unitary trial. The statutory presumption is that this aggravating circumstance will be addressed during the trial of the alleged crime. RCW 9.94A.537(4).

Cross-reference. For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing section 47:3 (3d ed.).