WPIC 300.26 Aggravating Circumstance—Egregious Lack of Remorse [RCW 9.94A.535(3)(q)]

For the aggravating circumstance involving egregious lack of remorse, 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).

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

Statutory background. This aggravating circumstance was added to the Sentencing Reform Act in 2005. The accompanying legislative history indicates that the statutory language was designed to codify existing common law aggravating circumstances. Laws of 2005, Chapter 68, § 1 (effective April 15, 2005).

Common law. Under the common law, an egregious lack of remorse requires more than a denial of guilt. State v. Garibay, 67 Wn.App. 773, 781–82, 841 P.2d 49 (1992), abrogated on other grounds by State v. Moen, 129 Wn.2d 535, 919 P.2d 69 (1996) (“The mundane lack of remorse found in run-of-the-mill criminals is not sufficient to aggravate an offense; the lack of remorse must be aggravated or egregious … Trial courts may not use a defendant's silence or continued denial of guilt as a basis for justifying an exceptional sentence.”). The assertion of a failed defense, or a refusal to apologize, also do not support a finding of egregious lack of remorse. State v. Ramires, 109 Wn.App. 749, 766, 37 P.3d 343 (2002); State v. Russell, 69 Wn.App. 237, 251, 848 P.2d 743 (1993) (refusing to admit guilt or silence insufficient). Whether a defendant's concealment of the crime can constitute an egregious lack of remorse depends on the particular circumstances; see discussion of concealment below.

No case, however, defines what constitutes an egregious lack of remorse. The WPI Committee has developed a definition based upon the common factors of the published cases in which this aggravating circumstance was found to exist, including the following cases: State v. Ross, 71 Wn.App. 556, 563–64, 861 P.2d 473, amended by 883 P.2d 329 (1994) (egregious lack of remorse established when the defendant continued to blame the justice system for his crimes and that his statement that he was sorry was not credible); State v. Erickson, 108 Wn.App. 732, 739–40, 33 P.3d 85 (2001) (a defendant's lack of remorse sufficiently egregious when he bragged and laughed about the murder, mimicked the victim's reaction to being shot, asked the victim if it hurt to get shot, thought the killing was funny, joked about being on television for the murder, and told police he felt no remorse); State v. Wood, 57 Wn.App. 792, 795, 800, 790 P.2d 220 (1990) (egregious lack of remorse found when a woman joked with her husband's killer about sounds her husband made after the killer shot him and went to meet a boyfriend's family ten days after her husband's death); State v. Russell, 69 Wn.App. at 252 (egregious lack of remorse sustained when the defendants sought to prevent the pain-afflicted child victims from receiving medical care for the defendant-inflicted injuries); State v. Creekmore, 55 Wn.App. 852, 861–62, 783 P.2d 1068 (1989) (similar holding as in Russell); State v. Stuhr, 58 Wn.App. 660, 664, 794 P.2d 1297 (1990) (egregious lack of remorse supported by the defendant's statement that he felt more remorse over the dog he killed the same night than the 80-year-old disabled man).

Concealment of the crime. Under some circumstances, steps taken to conceal a crime may be used to establish an exceptional sentence. For example, in State v. Crutchfield, 53 Wn.App. 916, 771 P.2d 746 (1989), the court upheld the related aggravating circumstance of impact on others when a manslaughter defendant knew the victim's parents and repeatedly lied to them about their daughter's disappearance, causing the parents sixteen months of emotional trauma not normally associated with the crime. See State v. Crutchfied, 53 Wn.App at 928, disapproved of on other grounds by State v. Chadderton, 119 Wn.2d 390, 832 P.2d 481 (1992). Concealment of a crime, however, cannot be used in this regard when the defendant's acts of transporting and concealing the victim's body establish the elements of the separate crime of rendering criminal assistance, or when the defendant's refusal to disclose the location of the body is justified by the constitutional right against self-incrimination. State v. Crutchfield, 53 Wn.App. at 926–27.

Presumption of unitary trial. The statutory presumption is that this aggravating circumstance will be presented to the jury 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 47:19 (3d ed.).