WPIC 26.06 Murder—First Degree—Indifference to Human Life—Elements

This instruction is intended to cover only RCW 9A.32.030(1)(b). If there is an issue of causal connection, use WPIC 25.02 (Homicide—Proximate Cause—Definition).

For a discussion of the phrase “any of these acts” in element (5), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

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

The instruction's second element now includes a requirement that the defendant knew of and disregarded the grave risk of death. State v. Barstad, 93 Wn.App. 553, 568, 970 P.2d 324 (1999), held that RCW 9A.32.030(1)(b)'s phrase “under circumstances manifesting an extreme indifference to human life” requires a subjective mental state: that the defendant must “know of and disregard the fact his conduct presents a grave risk of death to others.” The prior version of the instruction has been held constitutionally adequate, even though it omitted any express reference to the subjective mental state. In re Caldellis, 187 Wn.2d 127, 385 P.2d 135 (2016).

If a defense of excuse or justification is raised, then the question arises whether the defense tends to negate an element of the crime. If it does, then the concerns discussed in WPIC 14.00 (Defenses—Introduction) apply and the State may have the burden of proving the absence of excuse or justification. See State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014) (when a defense necessarily negates an element of the crime, it violates due process to place the burden of proof on the defendant, and the key to determining whether a defense necessarily negates an element is whether the completed crime and the defense can coexist). For further discussion of defenses, see the Comment to WPIC 26.04 (Murder—First Degree—Felony—Elements).

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).