WPIC 19.01 Murder in Commission of Felony—First and Second Degrees—Multiple Participants—Defens...

Use this instruction with WPIC 26.04 (Murder—First Degree—Felony—Elements) and WPIC 27.04 (Murder—Second Degree—Felony—Elements), which set forth the elements of felony murder in the first or second degree, when there are multiple participants and the statutory defense is in issue. Also use WPIC 2.03 (Bodily Injury—Definition) and the applicable instruction defining deadly weapon, WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) or WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives).

RCW 9A.32.030(1)(c) and RCW 9A.32.050(1)(b).

WPIC 19.01 was cited with approval in State v. Bockman, 37 Wn.App. 474, 682 P.2d 925 (1984) (prosecution for first degree felony murder predicated on first degree burglary).

It appears settled that this statutory defense must be established by a preponderance of the evidence. In State v. Rice, 102 Wn.2d 120, 683 P.2d 199 (1984), the Supreme Court upheld an instruction shifting the burden of proof to the defendant, in a murder case in which the defendant was charged with second degree felony murder predicated on second degree assault. In upholding the instruction, the court concluded that the principles outlined in State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983), “were not meant to negate the availability of this statutory defense in felony murder cases.” Likewise, in State v. Gamboa, 38 Wn.App. 409, 685 P.2d 643 (1984), the Court of Appeals upheld a similar instruction in a case in which the defendant was charged with first degree felony murder predicated on second degree robbery. The court found that the statutory defense negated none of the elements that the prosecution was required to prove and that the defense merely permits an accused to disprove participation in the homicidal act, not in the underlying felony.

The court in State v. Dennison, 115 Wn.2d 609, 617, 801 P.2d 193 (1990), rejected defendant's argument that there should be a point of “withdrawal” from participation in the felony, after which a defense might be revived. The court noted that in any case, to communicate withdrawal to the decedent, the defendant would have had to drop his gun or surrender, rather than simply point his gun at the ground.

A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851-52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).

Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).