Petitioner herein asserts that the substantive jury instructions read to the jury and sent back with the jury for deliberation unconstitutionally relieve the State of the burden to prove each fact necessary to constitute the elements of each crime charged, based on the following:

(1) Jury Instruction #4 created a structural defect under Sullivan v. Louisiana by expressly defining “reasonable doubt” as “abiding belief in the truth of charge,”  for two primary reasons, to wit: “abiding belief” in this case where there were several professed devout Christian jurors, would be perceived by Christian, and/or other jurors, as a “faith” determination such as faith in God, that does not require any proof beyond a reasonable doubt, but instead, is premised on human desire to seek belief in a higher power; “truth of the charge” inherently invites truth of the form of the charge, not proof beyond a reasonable doubt of the facts necessary to constitute the elements of the crimes charged.

(2) Jury Instruction #5 is legally insufficient under the facts, circumstances and defenses present in this case, for lack of the instruction to require jurors to exclude any hypothesis of the innocence when considering circumstantial evidence. This is especially true and prejudicial in this case where the co-defendant testified that the defendant was not a participant in the crime and the defense supported b substantial testimony and evidence indicated that the victim’s girlfriend committed the murder.

(3) Jury Instruction #6 omits the essential element of accomplice liability that the State must prove beyond a reasonable doubt, to wit: that “a principal” committed the crime charged before considering whether or not a criminal defendant’s mens rea and conduct constitutes aiding and abetting.

(4) Jury Instruction #10 is both legally insufficient and unconstitutional in that it charges two separate and distinct crimes in one count, both of which are repugnant to each other, for example: RCW 9A.32.030 (1) (1) requires premeditated intent of the defendant as cause of death; whereas, RCW 9A.32.030 (1) (c) requires absence of intent and proof that  that they cause of death was a natural and probable consequence of the underlying felony; and by requiring a finding of unanimity of guilt as to each alternative means of committing the crime of First Degree Murder would technically and functionally be an implied acquittal based on each guilty verdict negating the guilt of the other charge alternative.

(5) Jury Instruction #16, first degree felony murder relieves the State of requisite burden of proof that defendant himself performed conduct that would make him criminally culpable of first degree premeditated murder and/or the aggravating factors or 10.95.020, in that the guilty verdict did not require that the defendant himself committed the “in course of, in furtherance of, or immediate flight from a felony,” nor any conduct that would proximately cause the death; which is altered materially by Instruction #17 requiring the defendant committing or attempting to commit the underlying felony allowing the jury to take the path of least resistance; of which would as matter of law, implicate lenity doctrine application.

(6) Jury Instruction #20, paragraph one, which is applicable only to the premeditated murder alternative to the single count of Murder in the First Degree, unconstitutionally elevates single crime of first degree murder, bu its own bootstraps, to imposition of enhanced sentence by vehicle of aggravating factors found in the felony murder conviction, which is legally insufficient unconstitutional condition.

In paragraph two and three of Jury Instruction #20, which is the firearm enhancement the jury found defendant guilty  thereof, of which no sentence has been imposed to date so it is till pending, negates the “crime of robbery”  requirement of the aggravating factors because the firearm in a robbery elevates robbery to the first degree robbery, a crime not submitted to the jury.

(7) The combination of Jury Instructions #11, #12, and #14, in conjunction with the first degree felony murder lack of knowledge and intent requirements and definitions erode the State’s burden of proving premeditated intent down to a legally insufficient standard that cannot support a conviction under RCW 9A.32.030 (1) (a) or a RCW 10.95.020 conviction, constituting insufficiency of relevant and material evidence under Jackson v. Virginia, thereby, inter alia, the one year time constraint is not applicable under RCW 10.73.100 cf, Montgomery v. Louisiana, 577 U.S. _ 126 S.Ct. 781, 192 L.Ed.2d 599 (2016) (“when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is definition, unlawful”): State v. Dyson, 189 Wn.App. 215, 360 P.3d 25 (Wash.Ct.App. 2015) (“Under the common law at the time of the adoption of the United States Bill of Rights a fact essential to the penalty was an element of the crime, Alleyne v. United States, 133 S.Ct. At 2159. Therefore, other than the fact of a prior conviction, any fact that increases the penalty for a crim beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt”)

State v. Hacheney, 160 Wn.2d 503,_P.3d_(Wash. 2007):

The jury found Nicholas Hacheney guilt of premeditated first degree murder. By special verdict, the jury also found that he committed the murder “in the course of” first degree arson, an aggravating factor subjecting him to a life sentence without the possibility of release. Clerk’s Papers (CP) at 1362; RCW 10.95.020 (11) (e) …This court has held that in order for a death to have occurred in the course of a felony, there must be a causal connection such that the death was a probable consequence of that felony. State v. Golladay, 78 Wn.2d 121, 131, 470 P.2d 191 (1970). In this case, the murder was not a probable consequence of the arson. We conclude that, as a matter of law, Hacheney did not murder his wife in the course of arson…We affirm in part, reverse in part, and remand for resentencing absent the aggravating factor.

State v. Golladay, 78 Wn.2d 121, 470 P.2d 191 (1970):

As to when a homicide may be said to have been committed in the course of the perpetration of another crime, the rule is…it must appear that there was such actual legal relation between the killing and the crime committed or attempted, that the killing can be said to have occurred as part of the perpetration of the crimes, or in furtherance of an attempt of purpose to commit it. In the usual terse legal phraseology, death must have been the probable consequence of the unlawful act.

Burrage v. United States, 571 U.S._,134 S.Ct._,187 L.Ed.2d 715 (2014):

We consider whether the mandatory minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury.

The District Court denied Burrage’s motion for judgment of acquittal, which argued that Banka’s death did not “result from” heroin use because there was no evidence that heroin was a but-for cause of death.

We granted certiorari on two questions: Whether the defendant may be convicted under the “death results” provision (1) when the use of the controlled substance was a “contributing cause” of the death, and (2) without separately instructing the jury that it must decide whether the victim’s death by drug overdose was a foreseeable result of the defendant’s drug trafficking offense.

Because the “death results” enhancement increased the minimun and maximum sentences to which Burrage was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 570 U.S._,_(2013) (slip Op., at 14-15); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

We hold that, at least where use of the drug distributed by the defendant is not independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision.

Taylor Conley Jury Instructions #06-1-00457-1

Instruction 4

The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving the elements of each crime beyond a reasonable doubt. The defendant has no burden of proving that reasonable doubt exists as to these elements.

A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.

A reasonable doubt is one for which a reason exists and may arise from the evidence of lack of evidence. It is such a doubt as would exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Instruction 5

Evidence may be either direct of circumstantial. Direct evidence is that given by a witness who testifies concerning facts that he or she has directly observed or perceived through the senses. Circumstantial evidence is the evidence of facts or circumstances from which the existence of nonexistence of other facts may be reasonably inferred from common experience. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable that the other.

Instruction 6

A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.

A person is an accomplice in the commission of the crime if, with knowledge that is will promote or facilitate the commission of the crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime; or

(2) aids or agrees to aid another person in the planning or committing the crime.

The word “aid” means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

Instruction 10

The defendant has been charged with two crimes in the alternative Aggravated Murder in the First degree, and Felony Murder in the First Degree. You must decide each of these two alternative crimes separately, and your verdict on once count should not control your verdict on the other alternative count. You must reach a unanimous verdict with respect to each alternative count as explained further in these instructions.

Instruction 16

A person commits the crime of felony murder in the first degree when he or an accomplice commits or attempts to commit the crime of robbery or residential burglary and in the course of or in furtherance of such crime or in immediate flight from such crime he or another participant causes the death of a person other than one of the participants.

Instruction 17

To convict the defendant of the alternative crime of felony murder in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about March 31, 2006, Brian Swehla was killed;

(2) That the defendant was committing or attempting to commit the crime of either

(a) robbery or

(b) residential burglary;

(3) That the defendant or an accomplice caused the death of Brian Swehla in the course of or in furtherance of such crime or in immediate flight from such crime:

(4) That Brian Swhela was not a participant in the crime; and

(5) That the acts occurred in the State of Washington.

Instruction 20

You will also be given special verdict form A for the crime of premeditated murder in the first degree. If you find the defendant guilty of premeditated murder in the first degree as defined in Instruction 11, you must the determine whether any of the following aggravating circumstances exist: that the murder was committed in the course of, in furtherance of, or in immediate flight from the crime of robbery or residential burglary. 

You will also be given special verdict form B for the crime of felony murder in the first degree. For purpose of this special verdict, the State must prove beyond a reasonable doubt that they defendant was armed with a firearm, at the time of the commission of the crime, the firearm is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the firearm and the defendant or an accomplice. The State must also prove beyond a reasonable doubt that there was a connection between the firearm and the crime. In determining whether this connection existed, you should consider the nature of the crime, they type of firearm, and the circumstances under which the firearm was found.

If one participant in a crime is armed with a firearm, all accomplices to that participant are deemed to be so armed, even if only one firearm is involved.

Instruction 11

A person commits the crime of premeditated murder in the first degree when, with a premeditated intent to cause the death of another person, he causes the death of such person.

Instruction 12

Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.

Instruction 14

A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.

If a person has information which would lead a reasonable person in the same situation to believe that  facts exist which are described by law as being a crime, they jury is permitted but not required to find that he acted with knowledge. Acting knowingly or with knowledge also is established if a person acts intentionally.

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