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I DATE DEC 0 §' 7Mii

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"cHiEF JUSTICE 1 SUSAN L. .CARLSON

/ SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Petitioner,

V.

MICHAEL DAVID HENDERSON,

Respondent.

No. 95603-1

Filed DEC n 6 ?fl1«

GonzAlez, J.—It is generally not murder to kill another in self-defense. It

may not be murder—^though it is often a serious crime—^to kill another by accident.

Michael Henderson shot and killed Abubakar Abdi during an argument.

Henderson was charged with felony murder based on second degree assault with a

deadly weapon. Henderson contended that while acting in self-defense, he

accidentally killed Abdi. The jury was instructed on the defense of justifiable

homicide. The trial court did not instruct the jury on excusable homicide. Under

the instructions given, the jury necessarily found that the shooting was neither selfdefense nor accident when it found Henderson guilty of felony murder predicated

on second degree assault. The Court of Appeals reversed, finding the trial court
State V. Henderson, No. 95603-1

erred when it failed to give the excusable homicide instruction. We granted the

State's petition for review.

The State argues that the excusable homicide instruction was properly

rejected. We agree. Henderson was able to adequately argue his theory of the case

under the proper instructions that were given. We reverse the Court of Appeals

and remand back to that court for further proceedings under RAP 13.7(b).

Facts

On October 11, 2015, Henderson shot and killed 20-year-old Abdi. Abdi

and his friends were socializing at a restaurant and, later, at a Shell gas station

across the street. There, Abdi began arguing with Nekea Terrell. While Terrell

was buying alcohol at the gas station, Abdi called her names and told her to hurry

up. Terrell, Abdi, and Abdi's acquaintances continued to insult each other. One of

Terrell's acquaintances tried to calm her down.

Terrell knew Henderson because he dated her cousin. Terrell testified at

trial that at this point, Abdi was "getting really bold" and "pumped up." Report of

Proceedings (RP) (May 23, 2016) at 155. She said they continued to argue and she

thought she was going to have to fight a "dude." Id. at 156. Terrell said she was

ready to fight Abdi and Abdi never claimed he was armed or displayed a weapon.
State V, Henderson, No. 95603-1

Henderson joined the small group gathered around Abdi and Terrell as they

argued.

Henderson, the people with him, and Abdi's group were "cussing each other

out." RP (May 24, 2016) at 296. Nobody made overt threats, despite tension

being high. To this point, no weapons were shown, seen, or talked about.

Henderson testified that Abdi "flinched" his shoulders, lunged forward, moved his

arms toward his waist, and seemed to reach for something in a pocket. RP (June 1,

2016) at 682. Henderson drew a handgun from his rear pants pocket, pointed it

directly at Abdi, and pulled the trigger at close range. Abdi died almost instantly.

The shooting was captured on surveillance video.

Henderson's reason for drawing the gun, whether he pulled the trigger

intentionally or accidentally, and his objective when he fired the weapon were all

in dispute at trial. The jury found him guilty of felony murder based on second

degree assault with a deadly weapon. The Court of Appeals reversed, and we

granted review.'

' Since the Court of Appeals reversed for instructional error, it did not reach all the arguments

Henderson raised below.
State V. Henderson, No. 95603-1

Analysis

Since the trial court refused to give the instruction based on a ruling of law,

our review is de novo. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883

(1998) (citing State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled

on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997)).

The Sixth Amendment guarantees the right to a fair trial. U.S. Const.

amend. VI. Jury instructions satisfy the defendant's Sixth Amendment right to a

fair trial if, taken as a whole, they accurately inform the jury of the relevant law

and permit each party to argue their theory of the case. State v. Riley, 137 Wn.2d

904, 909, 976 P.2d 624 (1999) (quoting State v. Bowerman, 155 Wn.2d 794, 809,

802 P.2d 116 (1990)). The adequacy of each instruction must be "evaluated in the

context of the instructions as a whole." State v. Gentry, 125 Wn.2d 570, 613 &

n.56, 888 P.2d 1105 (1995) (citing State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d

289 (1993)). "A defendant in a criminal case is entitled to have the jury fully

instructed on the defense theory of the case." State v. Staley, 123 Wn.2d 794, 803,

872 P.2d 502 (1994) (citing State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902

(1986)).

Learned commentators have opined that "[ujnlike other defenses, the

'defense' of excusable homicide adds little if anything to the jury's analysis." 11
State V. Henderson, No. 95603-1

Washington Practice: Washington Practice Jury Instructions: Criminal

15.01 cmt. at 242 (2016) (WPIC); see RCW 9A. 16.030 ("Homicide is excusable

when committed by accident or misfortune in doing any lawful act by lawful

means, without criminal negligence, or without any unlawful intent."). We

elaborated in State v. Burt\

Because RCW 9A.32.010 requires an unjustifiable homicide which is

not criminal to be excusable, the statutory definition of excusable homicide

is merely a descriptive guide to the general characteristics of a homicide

which is neither murder nor manslaughter. The characteristics of excuse do

not have to be independently proved or found. Insufficiency of proof beyond

a reasonable doubt of the mens rea of murder or manslaughter requires a

finding of excusable homicide. Therefore, if a defendant wishes to argue

excuse to the jury, he only needs to persuade the jury that the prosecution

has not carried its burden because there is reason to doubt that the act was

committed with a mental element of at least criminal negligence.

94Wn.2dl08, 110-11, 614 P.2d 654 (1980).

In contrast, a justifiable homicide instruction—^which, here, was requested

and given—does add to the jury's analysis. It requires a jury to find that the

defendant reasonably believed the person slain (or others who the defendant

reasonably believed were acting in concert with the person slain) intended to

commit a felony or to inflict death or great personal injury. RCW 9A. 16.050(1);

WPIC 16.02. This adds substance to the jury's analysis. Excusable homicide, by

contrast, is merely descriptive. It does not create an affirmative defense. It is

reserved, at most, for cases where the defendant accidentally killed a person
State V. Henderson, No. 95603-1

without criminal negligence because, had there been criminal negligence, the

slaying would be manslaughter in the second degree.^ See also WPIC 15.01 cmt.

at 242 ("In many cases, an instruction on excusable homicide will confuse the jury

without providing any meaningful guidance.").

The Court of Appeals held it was reversible error for the trial court to refuse

to give an excusable homicide instruction. It found that because there was some

evidence of accident and because a defendant is entitled to control his defense, the

refusal to give the instruction was reversible error. But "[jjury instructions must be

considered in their entirety to determine if there is reversible error in a specific

instruction." State v. Schulze, 116 Wn.2d 154, 167-68, 804 P.2d 566 (1991) (citing

Caruso v. Local Union 690 oflnt'lBhd. of Teamsters, 107 Wn.2d 524, 533, 730

P.2d 1299 (1987)). Read as a whole, these instructions adequately told the jury the

intent, conduct, and necessary lack of accident it must find beyond a reasonable

doubt to convict. Henderson's accident defense was wholly and adequately

presented to the jury in the instructions as given. Specifically:

^ We question the usefulness of WPIC 15.01 and the proper characterization of excusable

homicide as a defense. Read in context, ROW 9A. 16.030 does not seem to function as a defense

to murder, homicide by abuse, or manslaughter in the way other provisions of chapter 9A.16

RCW do. See, e.g., RCW 9A.16.060 ("In any prosecution for a crime, it is a defense that..."),

.070 (same); see also Suppl. Br. of Pet'r, at 11-14. The excusable homicide statute, by contrast,

merely defines the circumstances under which homicide is not a crime. As was the case here, if

the jury is properly instructed as to the elements of murder, homicide by abuse, or manslaughter,

the definition of excusable homicide is likely not helpful and will likely be confusing instead.
State V. Henderson, No. 95603-1

[Instruction 8:] A person acts with intent or intentionally when acting

with the objective or purpose to accomplish a result that constitutes a

crime.

[Instruction 9:] A person commits the crime of murder in the second

degree when he commits assault in the second degree and in the course

of and in furtherance of such crime he causes the death of a person other

than one of the participants.

[Instruction 10:] To convict the defendant of the crime of murder in the

second degree, as charged in Count One each of the following elements

of the crime must be proved beyond a reasonable doubt.

(1) That on or about October 11, 2015 the defendant committed

assault in the second degree ....

[Instruction 11:] A person commits the crime of assault in the second

degree when he assaults another with a deadly weapon.

[Instruction 13:] An assault is an intentional shooting of another person,

with unlawful force, that is harmful or offensive.

Clerk's Papers at 54-57, 59 (emphasis added).

The jury instructions adequately and properly informed the jury of the

applicable law. Henderson was able to argue his theory of the case. And he did.

Defense counsel presented evidence of accident through Henderson's own

testimony on direct and redirect. Defense counsel also argued accident in his

closing argument.

Had the jury doubted that Henderson intentionally shot Abdi, it could not

have convicted under these instructions. If the jury doubted that Henderson

intended to shoot Abdi, a guilty verdict on second degree assault with deadly

weapon would necessarily be precluded. If the jury found the shooting was

7
State V. Henderson, No. 95603-1

accidental, it could not have found Henderson intended to shoot the gun and could

not have convicted. Read as a whole, the instructions given in this case allowed

Henderson to argue his theory of the case, and he did.

Conclusion

We hold that the trial court did not err in refusing to give an excusable

homicide jury instruction. Henderson was able to adequately argue his theory of

the case under the instructions given. Accordingly, we reverse and remand to the

Court of Appeals to consider the remaining arguments Henderson raised below.
State V. Henderson, No. 95603-1

WE CONCUR:

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