WPIC 16.02 Justifiable Homicide—Defense of Self and Others

Use this instruction in any homicide case in which this defense is an issue supported by the evidence. Use bracketed material as applicable.

Use WPIC 25.01 (Homicide—Definition), with this instruction. Use WPIC 2.04.01 (Great Personal Injury—Definition) and WPIC 2.09 (Felony—Designation of), as applicable, with this instruction. If there is an issue whether the defendant was the aggressor, use WPIC 16.04 (Aggressor—Defense of Self and Others).

If resistance to a felony is involved, see WPIC 16.03 (Justifiable Homicide—Resistance to Felony).

Do not use this instruction if the deadly force was used to defend against a non-violent felony, such as forgery, bribery, perjury, or the like.

When the offense charged is attempted murder, use this instruction, rather than WPIC 17.02 (Lawful Force—Defense of Self, Others, Property).

If a case involves a registered domestic partnership, and if it becomes necessary to define the term for jurors, an instruction can be drafted using language from RCW Chapter 26.60.

Generally. The instruction is based upon RCW 9A.16.050(1).

All facts and circumstances. The instruction's third numbered paragraph, referring to all facts and circumstances, is based upon State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). In Allery, the Supreme Court held that if there is evidence of self-defense, the jury must be instructed “to consider the conditions as they appeared to the slayer, taking into consideration all the facts and circumstances known to the slayer at the time and prior to the incident.” State v. Allery, 101 Wn.2d at 595. Also see State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991); State v. Bell, 60 Wn.App. 561, 805 P.2d 815 (1991).

In a case involving allegations of ongoing abuse, the jury must inquire whether the defendant acted reasonably, given the defendant's experience of abuse by the victim. State v. Janes, 121 Wn.2d 220, 239, 850 P.2d 495, 22 A.L.R.5th 921 (1993).

Burden of proof. The paragraph referring to the burden of proof is based upon State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983). In McCullum, the court held that the State has the burden of proving the absence of self-defense in a prosecution for first degree murder. McCullum continues to be cited with approval on this point. E.g., State v. Lively, 130 Wn.2d 1, 10, 921 P.2d 1035 (1996). For a detailed discussion see WPIC 14.00 (Defenses—Introduction). In State v. Read, 147 Wn.2d 238, 53 P.3d 26 (2002), the court held that a defendant had a burden of producing “some evidence” to establish the killing occurred under circumstances where there was a defense of life and also to produce “some evidence” that he or she had a reasonable apprehension of great bodily harm or imminent danger, before the defendant is deemed entitled to raise a self-defense claim. However, this must be read in conjunction with McCullum, where the court explained that there only needs to be some evidence admitted, from whatever source, which tends to prove the killing was done in self-defense. State v. McCullum, 98 Wn.2d at 487.

“The defendant's burden of ‘some evidence’ of self-defense is a low burden. Indeed, the evidence need not even create a reasonable doubt.” State v. George, 161 Wn.App. 86, 95, 249 P.3d 202 (2011) (citation and footnote omitted). See also State v. Werner, 170 Wn.2d 333, 241 P.3d 410 (2010), a per curiam reversal for failure to give this instruction. The defendant may satisfy the “some evidence” standard through witness testimony or other evidence introduced by the state. An absence of evidence is not, however, sufficient to satisfy this burden. State v. Fisher, 185 Wn.2d 836, 850, 374 P.3d 1185 (2016).

Withdrawal. As a general rule, one who is the aggressor or who provokes an altercation in which another is killed cannot invoke the right of self-defense to justify or excuse the homicide. However, the right of self-defense is revived as to the aggressor or the provoker if that person in good faith withdraws from the combat at such time and in such a manner as to clearly apprise the other person that he or she was desisting or intended to desist from further aggressive action. See State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973); State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946). In State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the Washington Supreme Court found that the trial court correctly refused the defendant's proposed self-defense instruction in a prosecution for felony murder because the defendant did not drop his gun or surrender and did not “clearly manifest a good faith intention to withdraw from the burglary or remove the decedent's fear.” State v. Dennison, 115 Wn.2d at 618.

Felony murder. A claim of self-defense in felony murder prosecutions presents special problems for instructing the jury. In State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the Supreme Court held that because a defendant is strictly responsible for death caused while fleeing from first degree burglary, the trial court properly refused the defendant's proposed self-defense instruction because the burglary was still in progress at the time that the defendant was fleeing from scene. In State v. Bolar, 118 Wn.App. 490, 78 P.2d 1012 (2003), the court, discussing Dennison, seemed to hold that self-defense is not available as a matter of law when the felony murder is based on burglary.

When second degree assault is the predicate offense for second degree felony murder, care must be taken in wording the instruction. Because deadly force may be used only in self-defense if the defendant reasonably believes he or she is threatened with “great personal injury,” a self-defense instruction when the State charges a defendant with second degree felony murder predicated upon second degree assault with a deadly weapon, RCW 9A.36.021(1)(c), must be patterned after WPIC 16.02. State v. Ferguson, 131 Wn.App. 855, 856–59, 129 P.3d 856 (a WPIC 17.02-patterned instruction is inappropriate when the defendant is charged with second degree felony murder predicated on second degree assault with a deadly weapon, a knife). If, however, the second degree felony murder charge is predicated upon an assault in violation of RCW 9A.36.021(1)(a) (without a deadly weapon), the self-defense instruction should be patterned after WPIC 17.02. State v. McCreven, 170 Wn.App. 444, 467–68, 284 P.2d 793 (2012). Two self-defense instructions may be required when the defendant is charged with both intentional second degree murder and second degree felony murder predicated upon an assault without a deadly weapon.

Defense of others. A person has a right to use such force to defend another as the person may use in defending himself or herself. The right to resort to the use of force in defending another is to be judged by the facts and circumstances appearing to the defender at the time. Thus, an individual is justified in using force to defend another if that individual reasonably believes that the person to be protected is the innocent party and in danger, even if, in fact, the person being defended was the aggressor. See State v. Penn, 89 Wn.2d 63, 568 P.2d 797 (1977); State v. Fischer, 23 Wn.App. 756, 598 P.2d 742 (1979); State v. Bernardy, 25 Wn.App. 146, 605 P.2d 791 (1980).

RCW 9A.16.050(1) states in part that homicide is justifiable when committed “in the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of any other person in his or her presence or company.” It has been held that under this statutory language, a homicide committed in the defense of another is not justifiable, unless the person being defended was present at the time of homicide. See State v. Trevino, 10 Wn.App. 89, 516 P.2d 779 (1973) (homicide allegedly in defense of the defendant's wife and children was not justifiable because neither the wife nor the children were present at the time of the shooting).

Imminent danger. The phrase “the slayer reasonably believed that” is included in the second numbered paragraph in light of the holding of the court in State v. LeFaber, 128 Wn.2d 896, 913 P.2d 369 (1996) (overruled on other grounds by State v. O'Hara, 167 Wn.2d 91, 217 P.3d 756 (2009)) and State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999), that the former version could be misunderstood to require actual imminent danger. See also WPIC 16.07 (Justifiable Homicide—Actual Danger Not Necessary) and its Comment.

State v. Janes, 121 Wn.2d at 241 (citations omitted). While “immediate harm” means “occurring, acting, or accomplished without loss of time: made or done at once,” “imminent harm” means “ready to take place: near at hand: … hanging threateningly over one's head.” In an abusive situation, “[t]hat the triggering behavior and the abusive episode are divided by time does not necessarily negate the reasonableness of the defendant's perception of imminent harm.” State v. Janes, 121 Wn.2d at 241.

Multiple assailants. There is no requirement that the defendant's fear be caused by only the person slain. His self-defense is lawful if based on reasonable fear of imminent harm from either the person slain, or others whom the defendant also reasonably feared. State v. Harris, 122 Wn.App. 547, 90 P.3d 1133 (2004); State v. Irons, 101 Wn.App. 544, 550, 4 P.3d 174 (2000).

Great personal injury. When given in conjunction with this instruction in a case involving the use of force against an unarmed assailant, the definition of “great personal injury” must contain the subjective element, as set forth in WPIC 2.04.01 (Great Personal Injury—Justifiable Homicide—Justifiable Deadly Force in Self-Defense—Definition). State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997). Practitioners should carefully note that “great personal injury” is distinct from “great bodily harm.” See the discussion of these terms in the Comment to WPIC 2.04.01 (Great Personal Injury—Justifiable Homicide—Justifiable Deadly Force in Self—Defense—Definition). The term “great bodily harm” should not be used with this instruction. State v. Walden, 131 Wn.2d at 475 n.3.

Attempted murder. This instruction, rather than WPIC 17.02 (Lawful Force—Defense of Self, Others, Property) should be used when the charged offense is attempted murder. “[T]he important issue is the defendant's mental state in committing the crime, not whether the victim in fact died.” State v. Cowen, 87 Wn.App. 45, 53, 939 P.2d 1249 (1997).

Other. The statute states in part that the defense is applicable “when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony.” For purposes of the defense, the use of deadly force appears to be limited to the resistance of violent felonies that threaten human life or may result in great personal injury. See State v. Nyland, 47 Wn.2d 240, 287 P.2d 345 (1955) (adultery is not a crime that imperils the life of the unoffending spouse or threatens personal injury). No self-defense instruction should be given when deadly force is used to repel an unlawful trespass that does not amount to a felony, because such force is excessive as a matter of law. State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979).

For a discussion of non-violent felonies that would not justify the use of deadly force, see the Comment to WPIC 16.03 (Justifiable Homicide—Resistance to Felony).

In State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986), the Washington Supreme Court refused to adopt the doctrine of “imperfect” self-defense. The court found that the trial court did not err in refusing an instruction that stated that “the use of force is not done with unlawful intent to kill where the person believes in good faith that he or she is acting in self-defense even though the person's belief is unreasonable.” State v. Hughes, 106 Wn.2d at 188. Also see State v. Bell, 60 Wn.App. 561, 805 P.2d 815 (1991). For cases relating to a defendant's reasonable belief as a justification for acting in self-defense, see the Comments to WPIC 16.04 (Aggressor—Defense of Self and Others) and WPIC 17.02 (Lawful Force—Defense of Self, Others, Property).