WPIC 180.05 Verdict Form B—Lesser Degree/Lesser Included/Attempt

Use this Verdict Form B to submit to the jury a lesser degree of a crime, a lesser included crime, or an attempt to commit a crime. Use WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt) with this Verdict Form B.

When only one lesser degree of the crime is being submitted to the jury, use this Verdict Form B to submit the lesser degree and use WPIC 180.01 (Verdict Form A—General) to submit the degree as charged. If a third degree of the crime is also being submitted, use WPIC 180.01 (Verdict Form A—General) to submit the crime charged, use this WPIC 180.05, to submit the second degree of the crime and use WPIC 180.06 (Verdict Form C—Lesser Degree—Three Degrees) to submit the lowest degree. For example: murder in the first degree would be submitted by Verdict Form A, murder in the second degree by this Verdict Form B, and manslaughter by Verdict Form C. For a second example: assault in the first degree would be submitted by Verdict Form A, assault in the second degree by this Verdict Form B, and simple assault by Verdict Form C.

Fill in all blanks except the space for “not guilty” or “guilty,” which is left for the jury to fill in. Fill in the name and degree of the crime as charged from Verdict Form A to reflect the not guilty finding that is a prerequisite to the jury's use of this Verdict Form B. Fill in the name and degree of the lesser crime being submitted by this Verdict Form B.

This instruction addresses the concerns raised in State v. Watkins, 99 Wn.2d 166, 660 P.2d 1117 (1983), by including the phrase “or being unable to unanimously agree as to that charge.” See also State v. Labanowski, 117 Wn.2d 405, 816 P.2d 26 (1991) (citing with approval the revised pattern instruction with this phrase).

When jurors are being instructed on a lesser offense, the better practice is to use verdict form A for the greater offense and verdict form B for the lesser, rather than using two verdict forms that both follow the simpler format of verdict form A. The use of forms A and B more clearly emphasizes for jurors the concluding instruction's critical point that they are to fully deliberate on the greater offense before considering the lesser. See WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt). Because this point is already made in the concluding instructions, repetition of this point in the verdict forms is not necessarily required by the case law. See State v. Williams, 22 Wn.App. 197, 200, 588 P.2d 1201 (1978) (“The number of instructions to be given on a subject rests within the discretion of the trial court.”). The WPI Committee believes, however, that this repetition is preferable in order to reduce the possibility of juror confusion.