WPIC 26.02 Murder—First Degree—Premeditated—Elements

Use the instruction when the charge is premeditated intent to cause the death of the person killed or a third person.

Use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 26.01.01 (Premeditated—Definition) with this instruction. If there is an issue of causal connection, use WPIC 25.02 (Homicide—Proximate Cause—Definition) with this instruction.

For a discussion of the phrase “any of these acts” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.32.030(1)(a).

Premeditation. RCW 9A.32.020 provides that the premeditation required for conviction of murder in the first degree must involve more than a moment in time.

Premeditation is an element of first degree murder that is distinct from intent. It is possible to form an intent to kill that is not premeditated. Thus, premeditation cannot be inferred from the intent to kill. See State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982); State v. Commodore, 38 Wn.App. 244, 684 P.2d 1364 (1984). Because premeditation and intent are separate elements, it is possible that evidence of a defense such as intoxication may be sufficient to submit the defense to the jury as it relates to premeditation, even though the evidence is insufficient to submit the defense to the jury as it relates to intent. State v. Brooks, 97 Wn.2d at 876–77. In a prosecution for first degree murder, it is error to instruct that it is not necessary for an appreciable period of time to elapse for premeditation to exist, since such instruction eliminates the distinction between murder in the first and second degrees. State v. Shirley, 60 Wn.2d 277, 373 P.2d 777 (1962). For a discussion of the distinction between the two degrees and an explanation of time requirements, see State v. Rutten, 13 Wash. 203, 43 P. 30 (1895), which has been reaffirmed through the years. See also State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963); State v. Tikka, 8 Wn.App. 736, 509 P.2d 101 (1973). For a thorough discussion of the element of premeditation, as distinguished from intent, see State v. Bingham, 105 Wn.2d 820, 719 P.2d 109 (1986).

Premeditation may be shown by circumstantial evidence where the jury draws reasonable inferences and the verdict is supported by substantial evidence. Motive, procurement of a weapon, stealth, and method of killing are factors relevant to establishing premeditation. State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995). Case law demonstrates a wide range of circumstances in which premeditation is established. See, e.g., State v. Rehak, 67 Wn.App. 157, 164, 834 P.2d 651 (1992) (premeditation existed where victim was shot three times in the head, two after he had fallen to the floor); State v. Commodore, 38 Wn.App. at 248 (defendant's lingering by the door, proceeding to a room where he knew he would find a gun, and returning to shoot the victim, implied premeditation); State v. Sargent, 40 Wn.App. 340, 353, 698 P.2d 598 (1985), reversed on other grounds, 111 Wn.2d 641, 762 P.2d 1127 (1988). For further review of the “wide range of proven facts” which have been held to support an inference of premeditation based on circumstantial evidence, see State v. Gentry, 125 Wn.2d 570, 598–99, 888 P.2d 1105 (1995). Evidence that the defendant concealed the victim's death is not sufficient to establish premeditation. State v. Hummel, 196 Wn.App. 329, 356–57, 383 P.3d 592 (2016).

Aggravated first degree murder. If a defendant is charged with aggravated first degree murder, the aggravating factors listed in RCW 10.95.020 are factors that increase the penalty for the offense. They are not elements of the underlying crime of first degree murder, and they need not be included in the “to convict” instruction for the underlying crime. The aggravating circumstances may instead be determined by the jury pursuant to a separate instruction and a special verdict. State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985); State v. Kester, 38 Wn.App. 590, 686 P.2d 1081 (1984). See WPIC 30.03 (Aggravated First Degree Murder—Aggravating Factors).

Defenses. For a general discussion of defenses, see WPIC 14.00 (Defenses—Introduction).

Some defenses are not available in homicide cases. Duress is not a defense to murder or attempted murder. RCW 9A.16.060; State v. Mannering, 150 Wn.2d 277, 75 P.3d 961 (2003). It is also not a defense to aggravated murder. This remains true even if the aggravating factor is commission of the murder in the course of a felony, and duress would be a defense to the underlying felony. State v. Whitaker, 6 Wn.App.2d 1, 11–15, 429 P.3d 512 (2018).

Time limitation for older cases. For murders committed in 1997 or earlier, the State would be required to prove that death occurred within three years and a day of the defendant's act (or, for murders committed in 1983 or earlier, within one year and a day).