State v. Jackson

Talmadge, J.

(dissenting) — This heinous case of child abuse by foster parents, Michael and Laurinda Jackson, resulted in the death of their two-year-old foster daughter, Breighonna. The majority erroneously analyzes accomplice liability under Washington law and ignores long-standing principles of Washington law obligating parents or persons standing in loco parentis to come to the aid of their children. I would hold the trial court properly instructed the jury on the question of accomplice liability and affirm the defendants’ convictions for felony murder in the second degree.

The trial court’s instruction here noted a parent has a legal duty to come to the aid of their small children if the child is being abused. The trial court’s instruction stated:

Participant means an accomplice. A person is an accomplice in the commission of a crime if, with knowledge that it 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 planning or committing the crime.
*733The 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. Unless there is a legal duty to act, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice; a legal duty exists for a parent to come to the aid of their small children if physically capable of doing so.

Jacksons’ Clerk’s Papers at 57.

The majority concludes Washington’s accomplice liability statute, RCW 9A.08.020, does not provide for accomplice liability if a person fails to perform a legal duty. The majority finds this is true because RCW 9A.08.020(3)(a) provides a person is an accomplice in the commission of a crime if: “(a) [w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it.” The majority notes this statutory provision is based on the Model Penal Code (MPC) section 2.06(3). Washington’s accomplice statute, however, specifically omits MPC 2.06(3)(a)(iii) which states additionally: “having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.” From this omission, the majority concludes the 1975 Legislature specifically rejected the possibility that accomplice liability could be predicated upon the failure to act.

The flaw in the majority’s analysis is that it fails to give appropriate attention to RCW 9A.08.020(3)(b). The Legislature provided a person is an accomplice of another person in the commission of a crime if “[h]is conduct is expressly declared by law to establish his complicity.” RCW 9A. 08-.020(3)(b). This provision appears at MPC section 2.06(3)(b). The Legislature’s enactment of this additional section explains the statement referenced in the majority opinion by the Legislative Council’s Judiciary Committee that “ ‘the rest of the section will cover all situations to *734which the excluded subdivision was addressed without raising the above-stated objection.’ ” Majority op. at 723. This statement comports with comment 6(e) to Model Penal Code § 2.06, at 320 (1985): “Subsection 3(b) preserves all special legislation declaring that particular behavior suffices for complicity, whether or not it would suffice under the standards of Subsection (3)(a).” Thus, in 1975, the Legislature expressly contemplated a person could be an accomplice if the person’s conduct was expressly declared by law to establish that person’s complicity in the crime.

Under Washington statutory law, a “person who witnesses the actual commission of . . . [a]n assault of a child that appears reasonably likely to cause substantial bodily harm to the child, shall as soon as reasonably possible notify the prosecuting attorney, law enforcement, medical assistance, or other public officials. . . . Failure to report as required ... is a gross misdemeanor.” RCW 9.69.100(l)(c) and (4).11 If Laurinda watched Michael and Michael watched Laurinda perpetrate incessant brutality on a helpless baby, and neither reported it, they were guilty of a gross misdemeanor. But more important for this case, were they also not each complicit in these monstrous crimes? Can one be anything but guiltily complicit when one observes such atrocities and fails to intervene or seek help? Our accomplice liability statute, expressly in the words of section 3(b), expressly in the commentary of the Legislative Council’s Judicial Committee, and expressly in the commentary of the Model Penal Code, captures statutes like RCW 9.69.100 within its ambit.

Moreover, both the common law and administrative law expressly establish a parent’s complicity in the conduct of another abusive parent. Under Washington common law, both parents have a duty to care for and protect their children and the failure of a parent to fulfill that duty may result in the imposition of criminal culpability or the *735termination of parental rights. See, e.g., In re Welfare of Hudson, 13 Wn.2d 673, 711-12, 126 P.2d 765 (1942). See also State v. Morgan, 86 Wn. App. 74, 936 P.2d 20, review denied, 133 Wn.2d 1011, 946 P.2d 401 (1997); State v. Williams, 4 Wn. App. 908, 915, 484 P.2d 1167 (1971); In re Adoption of Potter, 85 Wash. 617, 620, 149 P. 23 (1915). In Williams, the Court of Appeals described the common-law duty as “natural duty existing independently of statutes” and further stated “[w]e therefore hold that the violation of the parental duty to furnish medical care to a minor dependent child, the other elements of manslaughter being present, is a sufficient basis on which to rest a conviction of the crime of manslaughter . . . .” Williams, 4 Wn. App. at 915. As foster parents, the Jacksons agreed to abide by Washington Administrative Code provisions relating to foster parents. They promised in writing to “not use any type of physical discipline.” Ex. 41(c). They promised in writing to report any abuse, as is consistent with statutes obligating them to report child abuse to law enforcement or the Department of Social and Health Services. See Exs. 41(c), 65; RCW 26.44.030(1). Finally, and most pointedly, applicable administrative law prohibited their use of corporal punishment and affirmatively required them to “protect persons, while in the licensee’s care, from child abuse or neglect.” WAC 388-73-048(1), 388-73-050.

The majority’s analysis of the accomplice liability statute reads section 3(b) out of the statute. The Legislature plainly meant something by its enactment of RCW 9A.08.020(3)(b). If the law expressly declares certain conduct establishes a person’s complicity in the crime, the person is guilty as an accomplice. Given the statutory requirement to report an assault on a child, the administrative law provisions governing the relationship of the Jacksons to Breighonna as foster parents, and the general common-law duty of parents and those in loco parentis to safeguard the interests of children, the complicity required by section 3(b) is present here; the trial court properly instructed the jury on accomplice liability in this case.

The cruel death inflicted by two foster parents on a two-*736year-old girl, a child who had already seen enough trouble in her all too brief life, was a tragedy. The jury properly convicted two people who should have loved this little girl but instead killed her. Washington law and the Jacksons’ specific contractual duty obliged them to render appropriate assistance to a child who was subject to abuse or neglect. Washington law plainly contemplates and expressly declares the establishment of the Jacksons’ complicity. The trial court’s instruction on accomplice liability in this case was proper. I would reverse the Court of Appeals and reinstate the convictions of the Jacksons for felony murder in the second degree.

Durham, J., concurs with Talmadge, J.

The general duty to render aid to a victim of felony-level conduct is a significant public policy in Washington. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996).