WPIC 27.04 Murder—Second Degree—Felony—Elements

Fill in the name of the applicable felony or felonies other than those listed in the Note on Use to WPIC 26.04 (Murder—First Degree—Felony—Elements).

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 there is an issue of causal connection, use WPIC 25.02 (Homicide—Proximate Cause—Definition).

Use WPIC 26.04.01 (Felony Murder—Participant—Definition) with this instruction.

If multiple felonies are alleged, then use WPIC 190.09 (Special Verdict Form—Elements with Alternatives) with this instruction.

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.

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.32.050(1)(b).

RCW 9A.32.030(1)(c) lists the felonies for first degree felony murder. Other felonies are applicable to second degree felony murder. See Comment to WPIC 26.04 (Murder—First Degree—Felony—Elements).

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).

For a discussion of the phrase “in the course or furtherance of,” see the Comment to WPIC 26.04 (Murder—Felony—First Degree—Elements).

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). Consequently, the concerns discussed in WPIC 14.00 (Defenses— Introduction) are inapplicable.

For further discussion of the burden of proof on defenses, see the Comments to WPIC 26.02 (Murder—First Degree—Premeditated—Elements) and 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).

Neither first nor second degree manslaughter is a lesser included offense of second degree felony murder. State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005) (first degree manslaughter is not a lesser included offense of second degree felony murder); State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997) (contrary result for intentional second degree murder).

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).