WPIC 28.02 Manslaughter—First Degree—Reckless—Elements

Use this instruction for first degree manslaughter cases in which the issue is recklessly causing the death. This instruction is not applicable to vehicular homicide; use WPIC 90.02 (Vehicular Homicide—Elements). If there is an issue of causal connection, use WPIC 25.02 (Homicide—Proximate Cause—Definition).

With this instruction use WPIC 10.03 (Recklessness—Definition) as modified per the discussion in the Comment below.

For a discussion of the phrase “any of these acts” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.32.060(1)(a).

RCW 9A.32.020(2) provides that RCW Chapter 9A.32 does not affect RCW 46.61.520, the statute relating to vehicular homicide.

No instruction has been drafted for first degree manslaughter by the intentional killing of an unborn quick child. The instruction would be simply a statement of the statutory language from RCW 9A.32.060(1)(b) because the concept of recklessness is not involved.

First and second degree manslaughter are lesser included offenses of intentional murder, and instructions should be given to the jury when supported by the facts. State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). First degree manslaughter is likewise a lesser included offense of first degree murder by “extreme indifference.” State v. Henderson, 182 Wn.2d 734, 344 P.3d 1207 (2015). Second degree manslaughter is a lesser degree offense of a charge of first degree manslaughter. State v. Hansen, 30 Wn.App. 702, 638 P.2d 108 (1981). First degree manslaughter is not a lesser offense of second degree felony murder. State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005) (addressing felony murder with a predicate felony of second degree assault). Similarly, neither first nor second degree manslaughter is a lesser offense of first degree felony murder. State v. Sublett, 176 Wn.2d 58, 84, 292 P.3d 715 (2012). When a defendant is charged with both felony murder and intentional murder, it is likely that manslaughter is a lesser included offense of the intentional murder. The instruction on manslaughter should be given if supported by the facts. See State v. Condon, 182 Wn.2d 307, 343 P.3d 357 (2015) (when defendant is charged with both premeditated murder and first degree felony murder, intentional second degree murder is a lesser included offense).

Because manslaughter does not require the specific intent to kill, there can be no attempted manslaughter. State v. Red, 105 Wn.App. 62, 18 P.3d 615 (2001).

It is unlikely that a defense of justifiable homicide will apply to a charge of manslaughter. Justifiable homicide requires an intentional killing in self-defense, or under one of the other circumstances described in RCW 9A.16.040 or 9A.16.050. If a person accidentally kills another while engaging in the lawful use of force, the killing is excusable, not justifiable. State v. Brightman, 155 Wn.2d 506, 524–26, 122 P.3d 150 (2005).

The statutory definition of recklessness is written in terms of disregarding a substantial risk that a wrongful act may occur. See RCW 9A.08.010(1)(c); WPIC 10.03 (Recklessness—Definition). For manslaughter, however, the Supreme Court has held that recklessness involves disregarding a substantial risk that a death may occur. See State v. Gamble, 154 Wn.2d at 467–68 (in the context of analyzing whether first degree manslaughter is a lesser included offense of second degree felony murder with assault as the predicate felony). Accordingly, for a manslaughter case, the definition of recklessness from WPIC 10.03 (Recklessness—Definition) should be drafted by filling in that instruction's blank line with the word “death” rather than by using the statutory language “wrongful act.” For further discussion of Gamble, see the Comments to WPIC 10.03 (Recklessness—Definition) and WPIC 10.04 (Criminal Negligence—Definition).

For discussion of the burden of proof on defenses, see WPIC 14.00 (Defenses— Introduction).