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WPIC 30.03 Aggravated First Degree Murder—Aggravating Factors

11 WAPRAC WPIC 30.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 30.03 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part V. Crimes Against Life
WPIC CHAPTER 30. Aggravated First Degree Murder
WPIC 30.03 Aggravated First Degree Murder—Aggravating Factors
If you find the defendant guilty of premeditated murder in the first degree [as defined in Instruction ], you must then determine whether [any of] the following aggravating circumstance[s] exist[s]:
[(Name of victim) was a [law enforcement officer] [corrections officer] [fire fighter] who was performing [his] [her] official duties at the time of the act resulting in death and (name of victim) was known or reasonably should have been known by the defendant to be such at the time of the killing] [or]
[At the time of the act resulting in the death, the defendant was serving a term of imprisonment, had escaped, or was on authorized or unauthorized leave in or from a state facility or program for the incarceration or treatment of persons adjudicated guilty of crimes] [or]
[At the time of the act resulting in death, the defendant was in custody in a county or county-city jail as a consequence of having been adjudicated guilty of a felony] [or]
[The defendant committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder] [or]
[The defendant solicited another person to commit the murder and paid or had agreed to pay money or any other thing of value for committing the murder] [or]
[The defendant committed the murder to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group] [or]
[The murder was committed during the course of or as a result of a shooting where the discharge of the firearm was either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge] [or]
[(Name of victim) was a [[judge] [juror] [former juror] [prospective witness] [current witness] [former witness] in an adjudicative proceeding] [[prosecuting attorney] [deputy prosecuting attorney] [defense attorney] [member of the indeterminate sentence review board] [probation officer] [parole officer]] and the murder was related to the exercise of official duties performed or to be performed by (name of victim)] [or]
[The defendant committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime [, including but not limited to any attempt to avoid prosecution as a persistent offender]] [The concealment must relate to some crime other than the murder itself] [or]
[There was more than one person murdered and the murders were part of a common scheme or plan or the result of a single act of the person] [or]
[The murder was committed in the course of, in furtherance of, or in immediate flight from [robbery in the first or second degree] [rape in the first or second degree] [burglary in the first or second degree] [residential burglary] [kidnapping in the first degree] [arson in the first degree]]. [For this aggravating circumstance to exist, the State must prove that the [robbery] [rape] [burglary] [kidnapping] [arson] began before the killing] [or]
[(Name of victim) was regularly employed or self-employed as a news reporter and the murder was committed to obstruct or hinder the investigative, research, or reporting activities of (name of victim)] [or]
[At the time the defendant committed the murder, there existed a court order, issued in this or any other state, which prohibited the defendant from either contacting the victim, molesting the victim, or disturbing the peace of the victim, and the defendant had knowledge of the existence of that order] [or]
[At the time the defendant committed the murder, the defendant and the victim were “family or household members,” as that term is defined elsewhere in these instructions, and the defendant had previously engaged in a pattern or practice of three or more of the following crimes committed upon the victim within a five-year period, regardless of whether a conviction resulted: [Harassment] [or] [Any criminal assault]].
The State has the burden of proving the existence of an aggravating circumstance beyond a reasonable doubt. In order for you to find that there is an aggravating circumstance in this case, you must unanimously agree that the aggravating circumstance has been proved beyond a reasonable doubt. [You would then answer “yes” to the special verdict question. In order to answer “no,” you must unanimously agree that “no” is the correct answer. If after full and fair consideration of the evidence you are not in agreement as to the answer, then do not fill in the blank for that question.]
[You should consider each of the aggravating circumstances above separately. If you unanimously agree that a specific aggravating circumstance has been proved beyond a reasonable doubt, you should answer the special verdict “yes” as to that circumstance. If you unanimously agree that the answer for a specific aggravating circumstance is “no,” you must fill in the applicable blank with the answer “no.” If after full and fair consideration of the evidence you are not in agreement as to an answer, then do not fill in the blank for that question.]
[For [any of] the aggravating circumstance[s] to apply, the defendant must have been a major participant in acts causing the death of (name of person) and the aggravating factors must specifically apply to the defendant's actions. The State has the burden of proving this beyond a reasonable doubt. If you have a reasonable doubt whether the defendant was a major participant, you should answer the special verdict “no.”]
NOTE ON USE
Use WPIC 30.04 (Aggravated First Degree Murder—Special Verdict) with this instruction.
Use bracketed material as applicable. Use the bracketed phrase “as defined in Instruction ” in the first paragraph if there are lesser included offenses alleged or other crimes charged.
If the bracketed paragraph involving discharge of a firearm from a motor vehicle is used, combine this instruction with WPIC 2.10 (Firearm—Definition as Element). “Firearm” as used in this instruction is to be defined as set forth in WPIC 2.10 (Firearm—Definition as Element) because that instruction is based on RCW 9.41.010. RCW 10.95.020(7).
For the bracketed sentence in the paragraph dealing with concealment of a crime, see the Comment. If the bracketed reference to a persistent offender is used, and if it is necessary to define “persistent offender” for the jury, then draft an instruction using the definition from RCW 9.94A.030.
If the bracketed paragraph including the reference to “family or household member” is used, then the statute requires that the term be defined pursuant to RCW 10.99.020(3). Use WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions).
If the bracketed paragraph including the reference to harassment is used, the statute requires that the term be defined pursuant to RCW 9A.46.020. Use WPIC 36.06 (Harassment—Gross Misdemeanor—Definition) or WPIC 36.07.01 (Harassment—Felony—Definition), as applicable.
If the bracketed paragraph including the reference to “any criminal assault” is used, then take care to select the proper pattern instruction defining the appropriate “criminal assault.”
For the bracketed sentence in the paragraph dealing with murder in the course of a felony, see the Comment.
Depending on the number of aggravating circumstances in the case, there will either be one or two paragraphs addressing the use of the special verdict forms. If only a single aggravating circumstance is alleged, then the paragraph that begins “The State has the burden of proving …” would be used in full, including the bracketed sentences, and the ensuing bracketed paragraph (addressing multiple aggravating circumstances) would not be used. If more than one aggravating circumstance is alleged, then the first paragraph would be used without the bracketed sentences, and the ensuing paragraph would be used to explain that each circumstance needs to be separately considered.
The bracketed paragraph on major participation relates to cases involving accomplice liability.
COMMENT
RCW 10.95.020.
For an aggravating circumstance to apply, the defendant must be a major participant in the acts causing the death of the victim. This requirement was derived from cases dealing with the death penalty. The death penalty may be constitutionally imposed only if the defendant was a major participant and if the aggravating factors are specifically applied to the defendant. State v. Roberts, 142 Wn.2d 471, 508–09, 14 P.3d 713 (2000); see Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987). It would also violate the Washington aggravated murder statute to apply aggravating factors to a defendant in a non-death penalty case unless the defendant personally committed those aggravating factors. In re Howerton, 109 Wn.App. 494, 501, 504–05, 36 P.3d 565 (2001) (because the aggravated murder statute's language bars strict liability, the aggravating circumstances in a non-death penalty case must be specifically attributable to the defendant). See also State v. Thomas, 150 Wn.2d 821, 83 P.3d 970 (2004), as discussed in State v. Whitaker, 133 Wn.App. 199, 232–35, 135 P.3d 923 (2006) (interpreting Thomas as extending the major participation requirement to non-death penalty cases, while questioning whether this requirement should apply only to death penalty cases, but ultimately not deciding the question). The “major participant” and related language added to this instruction implements the case law's limitation on the reach of the aggravated murder statute.
It must be clear to the jury that it must find both the elements of premeditated murder in the first degree and the presence of an aggravating circumstance in order to find the defendant guilty of aggravated murder in the first degree. See State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991). As long as both of these concepts are clearly expressed in the instructions, then the jury need not be further instructed that premeditated first degree murder is a lesser offense for aggravated first degree murder. State v. Yates, 161 Wn.2d 714, 168 P.3d 359 (2007) (approving the trial court's use of WPIC 26.02 (Murder—First Degree—Premeditated—Elements) and WPIC 30.03).
When more than one aggravating circumstance is alleged, and the aggravating circumstances are presented as alternatives, the jury must be unanimous as to which aggravating circumstance is present in order to convict the defendant of aggravated first degree murder. State v. Mak, 105 Wn.2d 692, 739, 718 P.2d 407 (1986), overruled in part on other grounds by State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994); In re Jeffries, 110 Wn.2d 326, 339, 752 P.2d 1338 (1988). This does not mean, however, that the jury must be unanimous as to the alternate means of satisfying an individual aggravating circumstance. It is enough that the jury unanimously agrees as to the presence of the aggravating circumstance, but it need not consider which of the alternate ways of satisfying it was present. In re Jeffries, 110 Wn.2d at 339. The charging of multiple aggravating factors has been upheld against challenges on due process, double jeopardy, and “same criminal conduct” grounds. See State v. Brett, 126 Wn.2d 136, 168–71, 892 P.2d 29 (1995).
When the aggravating circumstance charged is RCW 10.95.020(9), that the murder was committed to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, the specific crime need not be stated, as due process does not require that the crime to be concealed be charged and included in the jury instructions. State v. Jeffries, 105 Wn.2d 398, 420, 717 P.2d 722 (1986). However, the court in Jeffries stated that due process does require proof beyond a reasonable doubt that the murders were committed to conceal the identification of the person committing a crime. The court further stated that it is proper that there be no instruction on the specific crime the murder was committed to conceal “so long as the jury could have concluded that a crime was in fact committed.” State v. Jeffries, 105 Wn.2d at 420. Similarly, the jury need not be unanimous as to which of possible multiple crimes were committed so long as each of the possible crimes is supported by sufficient evidence. State v. Longworth, 52 Wn.App. 453, 465, 761 P.2d 67 (1988).
The court declined to reconsider Jeffries in State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1995). The court held that a special verdict form using the wording of the aggravating circumstance of concealment as set forth in this instruction was not unconstitutionally vague, either for failure to specify a particular crime to be concealed or for failure to specify a mental state, because the wording already “implies purposefulness.” State v. Pirtle, 127 Wn.2d at 661. The concealment must pertain to some crime other than the murder itself. State v. Irby, 187 Wn.App. 183, 203, 347 P.3d 1103 (2015). For this edition, the instruction has been modified to include this requirement.
When the aggravating circumstance charged is RCW 10.95.020(10), that there was more than one victim and the murders were part of a common scheme or plan or the result of a single act, only one of the murders committed need be aggravated first degree murder; the others may be either first or second degree murder. See State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985).
Evidence supporting the aggravating circumstance “in the course and furtherance of” a particular crime need not include proof of the completed crime. State v. Brett, 126 Wn.2d at 162–66. There is no requirement that “in the course of,” “in furtherance of” or “in immediate flight” be defined in the instructions. State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997).
Felony murder is not a lesser included offense within aggravated first degree murder. See State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988).
RCW 10.95.020(1) lists the following as an aggravating circumstance:
The victim was a law enforcement officer, corrections officer, or fire fighter who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing.
The use of the word “such” in this provision has been the cause of some confusion. It is not clear whether the word “such” requires a finding that the defendant should have reasonably known that the person killed was a law enforcement officer, corrections officer, or fire fighter or a finding that the defendant should have reasonably known that the victim was performing official duties at the time of the killing. In State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986), the court rejected the argument that the defendant had been unconstitutionally convicted because the jury had not been instructed to find that the defendant knew the victim was performing his official duties at the time of the murder. The court found that an instruction stating that the victim was known by the defendant to be a law enforcement officer at the time of the killing was consistent with the language of the statute and the defendant's theory of the case. However, the court did not discuss whether a different instruction would be required if the defendant's theory of the case is that the defendant did not know that the victim was performing official duties at the time of the killing. The court in State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991), discussed whether there was sufficient evidence to show under RCW 10.95.020(1) that the victim was a police officer, that the victim was engaged in official duties, or that the defendants should have known that the victim was engaged in official duties at the time of the killing.
RCW 10.95.020(6) provides an aggravating circumstance for murders that are committed by a person “to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.” The court in State v. Monschke, 133 Wn.App. 313, 135 P.3d 966 (2006), defined some of the terms used in this aggravating circumstance:
A “group” is “a number of individuals bound together by a community of interest, purpose, or function,” or a “number of persons associated formally or informally for a common end or drawn together through an affinity of views or interests.” A group is “identifiable” if it is “capable of being identified.” A “hierarchy” is “the classification of a group of people with regard to ability or economic or social standing.”
State v. Monschke, 133 Wn.App. at 329 (citations omitted). Under these definitions, a group need not have any formal organization. A murder fell within this aggravating circumstance when it was committed to enhance the defendant's status among “white supremacists.” State v. Monschke, 133 Wn.App. at 329–30.
When the aggravating circumstance charged is RCW 10.94.020(7), the State must prove that the murder was committed as the result of discharging a firearm from a motor vehicle or from the immediate area of a motor vehicle. This requires that the shooter be either inside the vehicle or within easy reach of it. The aggravating circumstance did not apply to a defendant who drove to the murder scene, exited the vehicle, and shot the victim when he was 63 feet away. State v. Vasquez, 2 Wn.App.2d 632, 415 P.3d 1205 (2018).
The statutory aggravating factor of killing a prospective witness, RCW 10.95.020(8), applies to a defendant convicted of first degree murder even though the defendant was not a party to the proceedings in which the witness was going to testify. State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003) overruled on other issue by State v. Guzman Nuñez, 174 Wn.2d 707, 285 P.3d 21 (2012). When the State alleges that the murder was committed to protect or conceal the identity of a person committing a crime, the crime concealed must be one other than the murder. State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995).
The aggravating factor in RCW 10.95.020(11) applied to a killing that occurred in the course of rape, even though the murder victim was not the rape victim, where the defendant committed the murder, in part, to facilitate escape from the crime of raping a separate victim. In re Woods, 154 Wn.2d 400, 114 P.3d 607 (2005), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).
RCW 10.95.020(10) requires a nexus between murders alleged to be part of a common scheme or plan. State v. Finch, 137 Wn.2d 792, 975 P.2d 967 (1999). The phrase “common scheme or plan” has a generally understood meaning and need not be defined for jurors. State v. Yates, 161 Wn.2d 714, 749, 168 P.3d 359 (2007). In Yates, the trial court defined the term as having two alternative meanings, and the Supreme Court upheld this definition. State v. Yates, 161 Wn.2d at 749–51 (defining the term as requiring (1) “a connection between the crimes in that one crime is done in preparation for the other,” or (2) “an overarching criminal plan” that is devised and used “to perpetrate separate but very similar crimes”). The State must prove that the other felony began before the killing. State v. Irby, 187 Wn.App. at 201. For this edition, the instruction has been modified to include this requirement.
[Current as of May 2019.]
End of Document