Back to the future

By Wayne C. Fricke; June 2001

     In mid December of last year the Washington Supreme Court filed an opinion which recognized that the State had been applying the accomplice liability statute incorrectly for several years.  See State v. Cronin, 142 Wn.2d 568, 14 P.3^rd 752 (2000).  Now, pursuant to RCW 90.08.020, the State must prove, in an accomplice situation, that the “putative accomplice” in order to be found guilty, must have acted with knowledge that his or her conduct would facilitate the crime for which he or she is eventually charged.

     Prior to this time the courts were instructing juries that it was only required to prove that the putative accomplice knew that his conduct was aiding in the commission of any crime and if the other defendant went beyond that particular crime the putative defendant could still be held liable for that conduct and hence found guilty of the charged crime.

     Since that time, at least two other cases have reversed convictions because of an erroneous accomplice liability instruction.  Although both cases are unpublished at this time, it is clear that Cronin and its companion case, State v. Roberts, have opened up a situation where all of us need to consider the potential impact as to prior cases which resulted in convictions under accomplice liability.  See State v. Montgomery, 2001 WL 63189 (January 26, 2001). See also State v. Sanchez 2001 WL 210680 Division I (March 5, 2001).  Montgomery, like Cronin and Roberts, involved first degree murder.  However, Sanchez involved a delivery of heroin charge under an accomplice case. 

     It should also be noted that in Montgomery the Court of Appeals cited to a United States Supreme Court decision that indicated that the instructional error should be judged by a harmless error instruction.  See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 827, 144 L.Ed. 2^nd 35 (1999).  Because it wasn’t argued in that case the court indicated that a decision as to whether the harmless error standard applies in the State of Washington would be left for the future.

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