WPIC 28.06 Manslaughter—Second Degree—Criminal Negligence—Elements

With this instruction use WPIC 10.04 (Criminal Negligence—Definition) as modified per the discussion in the Comment below. If there is an issue of causal connection, use WPIC 25.02 (Homicide—Proximate Cause—Definition) with this instruction.

This instruction does not apply to vehicular homicide; use WPIC 90.02 (Vehicular Homicide—Elements).

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.32.070(1).

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

First and second degree manslaughter are lesser included offenses of intentional murder; instructions should be given to the jury when supported by the facts. State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). 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).

Second degree manslaughter is not a lesser included 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).

The statutory definition of criminal negligence is written in terms of failing to be aware of a substantial risk that a wrongful act may occur. See RCW 9A.08.010(1)(d); WPIC 10.03 (Recklessness—Definition). For the crime of manslaughter, however, the Supreme Court's opinion in State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005), suggests the application of a more particularized analysis of criminal negligence. In Gamble, the court held that recklessness involves disregarding a substantial risk that a death may occur, whereas the usual definition of recklessness involves disregarding a substantial risk that a wrongful act may occur. 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). By analogy, criminal negligence for manslaughter would correspondingly involve failure to be aware of a substantial risk that a death may occur. Accordingly, for a manslaughter case, the definition of criminal negligence from WPIC 10.04 (Criminal Negligence—Definition) should be drafted by filling in that instruction's blank line with “death” rather than by using “wrongful act.” For further discussion of Gamble, see the Comments to WPIC 10.03 (Recklessness—Definition) and 10.04 (Criminal Negligence—Definition).

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 RCW 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).

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