WPIC 26.04 Murder—First Degree—Felony—Elements

Use bracketed material as applicable. See the Comment below for a discussion regarding the use of the bracketed phrase “or an accomplice.” If this phrase is included, use WPIC 10.51 (Accomplice—Definition) with this instruction.

Fill in the name of the applicable felony or felonies: (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, (5) kidnapping in the first or second degree.

Along with this instruction, use WPIC 26.04.01 (Felony Murder—Participant—Definition).

With this instruction also give an instruction defining the particular felony. If an attempt to commit the felony is involved, also give WPIC 100.01 (Attempt—Definition). It will not be necessary to use WPIC 2.09 (Felony—Designation of) because the word “felony” is not used in this instruction. If the jury is being presented with more than one underlying felony, use WPIC 190.09 (Special Verdict Form—Elements with Alternatives) with this instruction.

If there is an issue of causal connection use WPIC 25.02 (Homicide—Proximate Cause—Definition). If there are multiple participants and if the statutory defense is in issue, use WPIC 19.01 (Murder in Commission of Felony—First and Second Degrees—Multiple Participants—Defense) 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)(c).

Premeditated murder and felony murder are alternative ways of committing the single crime of first degree murder. State v. Fortune, 128 Wn.2d 464, 909 P.2d 930 (1996). The statute does not set forth a requisite mental state for the crime of felony murder. The state of mind necessary to prove felony murder is the same state of mind necessary to prove the underlying felony. See State v. Osborne, 102 Wn.2d 87, 684 P.2d 683 (1984); State v. Wanrow, 91 Wn.2d 301, 588 P.2d 1320 (1978); State v. Bolar, 118 Wn.App. 490, 78 P.3d 1012 (2003). In first degree felony murder, the premeditation or extreme indifference to human life required in other sections of the first degree murder statute are substituted for the circumstances specific to the felonies enumerated in the felony murder statute. State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990).

If the death occurs in the attempt, commission, or flight from one of the enumerated crimes, it is unnecessary to prove that the person who kills another did so with malice, design, or premeditation, unless the person has evidenced an intent to withdraw from the felony. State v. Dennison, 115 Wn.2d at 615–18. Moreover, because the statute does not require the State to prove the intent with which a homicide is committed when it is done in connection with one of the enumerated felonies, mere lack of an intent to commit the underlying felony at the moment of the killing is not a defense and the refusal of an instruction embodying such a theory is proper. State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973).

In State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988), the court held that the crime of felony murder is not a lesser included offense within the offense of aggravated murder in the first degree and that the trial court erred in instructing that it was. Similarly, first and second degree manslaughter are not lesser included offenses of first degree felony murder and a defendant is not entitled to have the jury instructed as to those crimes. State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983). Likewise, second degree intentional murder is not a lesser included offense of first degree felony murder. State v. Dennison, 115 Wn.2d at 626–27.

When a defendant is charged with both felony murder and premeditated murder, second degree intentional murder is a lesser included offense of premediated murder. The defendant is entitled to an instruction on second degree murder if a rational jury could have had a reasonable doubt as to premeditation. This remains true even if there is overwhelming evidence of felony murder. State v. Condon, 182 Wn.2d 307, 343 P.3d 357 (2015).

The statute requires that the killing occur “in the course of or in furtherance of … or in immediate flight from a felony.” For purpose of felony murder, a homicide is deemed committed during the perpetration of a felony if the homicide is within the “res gestae” of the felony, i.e., if there was a close proximity in terms of time and distance between the felony and homicide. State v. Leech, 114 Wn.2d 700, 790 P.2d 160 (1990). Whether a felony is completed at the time of the killing, thus breaking the connection between the felony and the killing, is a question of fact for the jury. See State v. Daniels, 119 Wash. 557, 560, 205 P. 1054, 1055 (1922) (the question of whether the defendants were in the act of committing larceny at the time of killing was properly submitted to the jury); State v. Brenner, 53 Wn.App. 367, 768 P.2d 509 (1989) (the record contained substantial evidence to support the jury's conclusion that the homicide occurred in the course of and in furtherance of or flight from the underlying burglary), overruled on other grounds by State v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003).

When the underlying crime is burglary, the State must prove that the burglary began before the killing. State v. Irby, 187 Wn.App. 183, 347 P.3d 1103 (2015). Similarly, when the underlying crime is robbery, the State must prove that the intent to rob existed before the killing. State v. Song Wang, 5 Wn.App.2d 12, 424 P.3d 1251 (2018), review denied, 192 Wn.2d 1012 (2019).

The statute defines an affirmative defense, consisting of proof that the defendant did not kill the victim, that the defendant was not armed, that the defendant did not believe that the assailant was armed, and that the defendant did not believe that the assailant intended to kill or injure the victim. The courts have held that the statute properly places the burden of proving the defense upon the defendant. The burden need not be shifted to the State to disprove the defense. See WPIC 19.01 (Murder in Commission of Felony—First and Second Degrees—Multiple Participants—Defense). Also see WPIC 14.00 (Defenses—Introduction).

For a discussion of self-defense in the context of felony murder, see the Comments to WPIC 16.02 (Justifiable Homicide—Defense of Self and Others) and WPIC 17.02 (Lawful Force—Defense of Self, Others, Property).

When the prosecution alleges that the murder was committed in the course or furtherance of more than one felony, there must be sufficient evidence to support each felony alleged. State v. Maupin, 63 Wn.App. 887, 822 P.2d 355 (1992) (noting that special verdict forms may be appropriate when more than one felony is alleged). For the appropriate special verdict form, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives).

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).