Homicide
A. Grading
Concepts: pg. ______ Bentham (punishment must be enough to deter), Gross (proportionality), Honoré (Deterrent theory), Ewing (Moral disapproval, but disproportionate will discredit legal system), Fitzjames Stephen (retribution > deterrence), Hart (moral wickedness as partial determinant)
AM 44-45 (Plea bargaining)
Proportionality:
- Moralism
o Intrinsic difference between moral culpability in relation to different types of crimes
o Should be in proportion to values and public focus on crime rather than suffering inflicted
- Proportionality
o Utilitarianism
B. Intentional Homicide
Common law murder:
Elements:
Malice can mean:
1. Intentional Murder
2. Depraved heart murder
3. Intentionally causing serious bodily injury with death resulting
a. The effect of this depends on how narrowly grievous bodily injury is interpreted. May not even need it though, because many attacks could just fall under depraved heart murder. If it’s broadly defined, however, it might not. The rule can have big implications for those who fight (Waldon one-punch case).
4. Felony Murder
Homicide Material Elements:
1. Conduct Any act (or culpable omission) [plus accompanying culpability]
2. Result Death [plus accompanying culpability]
Malice aforethought is result cul.
Intentional homicide: purposefully or knowingly (result)
1. Murder v. Voluntary Manslaughter
a. Common Law Standard – Provocation
Provocation reduces homicide from murder to voluntary manslaughter
• Common law: (heat of passion) reason was disturbed so much cause the reasonable, ordinary man act out of passion
• MPC: extreme emotion/metal disturbance (see next section)
Legally sufficient provocation: mutual combat, serious assault, false arrest, abuse or injury of close relative, sometimes adultery.
• verbal provocation is insufficient (Girouard, exception: Maher)
Girouard v. State MD 1991 p390 – Majority rule: verbal provocation insufficient as matter of law
1. Wife makes lots of insults, husband stabs her 19 times but then tries to slit his own wrists. Calls police and confesses.
2. Holding: there wasn’t adequate to mitigate 2nd degree murder to voluntary manslaughter.
3. Rule: Verbal provocation is insufficient to mitigate. Judge determines whether provocation exists as a matter of law.
4. Objective/reasonableness standard - ’s state of mind can’t change it.
Maher v. People MI 1862 p392 – Minority rule: verbal provocation sufficient to send to jury
5. Maher learned that victim was committing adultery with his wife. 1 hr. later walks into saloon & shoots him. *didn’t kill him, but found guilty of assault w/ intent to murder
6. Holding: sufficient evidence of provocation (vs. sufficient deliberation and cooling time) to send question to jury, then if instead it only would have been manslaughter, then charge would be reduce to assault and battery
7. Rule: circumstances where ordinary man’s mind would be obscured by passion.
8. Objective reasonableness unless weakness of mind or infirmity of temper can be shown Jury Q case by case
Other Concepts
• Cooling time: traditionally, sufficient cooling time eliminates sufficient legal provocation. A small number of jurisdictions allow for “rekindling”.
• See State v. Gounagias p.399?
• If is claiming provocation, he can’t have provoked the provoker. Regina v. Johnson p401.
• In the minority of jurisdictions where provocation is a question of fact ≈ jury decision Even if there’s video evidence, it’s still a “question of fact”. p394 Maher.
b. MPC 210.3(1)(b)– Extreme Emotional Distress (aka MPC Provocation)
Followed by just 10 states.
• “Extreme emotional disturbance” is a broadening of common law “heat of passion”
• EED Rule: 1) Acted under EED; 2) reasonable explanation or excuse for EED.
• MPC also doesn’t have a “hot blood” requirement—allows for cooling time, brooding.
• Common Law approach focuses on the act of the provoker, MPC focused more on the subjective culpability of the killer, although there is still a modified objective standard (the reasonable person in the actor’s position).
• Modified objective will NOT take into account culture, mental disorder.
• Will consider age, sex
People v. Casassa NY 1980 p401 (guilty of 2nd degree, no mitigation for EED)
• Casasa and Lo Consolo dated casually for a few months. Lo Consolo broke it off.
• Casassa tried to reconcile with her, she refused, he stabbed her throat and then drowned her to make sure she was dead.
• Holding: Legislature uses MPC for extreme emotional disturbance except the burden of proof is on the .
• EED Rule: 1) Acted under EED; 2) reasonable explanation or excuse for EED.
• Excuse offered by was so peculiar to him that it is unworthy of mitigation/unreasonable.
c. Subjective, Objective, and Individualized Standards
• MPC says determination of reasonableness shall be made “from the viewpoint of the person in the actor’s situation under the circumstance as he believes them to be”.
• In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen (juror). (This is actually from the MPC commentary)
• Deliberate fudge that tosses the question to the jury.
Battered women: mixed whether battered women get reasonable person standard vs. reasonable person with history of being abused, etc:
State v. McLain (NJ 1991): Woman killed abusive husband. The court held that evidence of battered woman syndrome was irrelevant because provocation uses the “reasonable person” test.
State v. Felton (Wis 1983): Court allowed objective test meaning how a similarly situated person would react to the provocation. (ordinary person who is a battered spouse)
Mental disorder: (Not considered in semi-objective test)
State v. Kilmas (Wis 1979): D tried to use mental distress as adequate provocation for killing wife. Trial judge ruled psychiatric evidence irrelevant and therefore inadmissible.
People v. Steele (Cal 2001): inadmissible in case where Vietnam vet snapped when he heard sound of an approaching helicopter.
2. First v. Second Degree: The Premeditation Formula
Difference b/w first and second degree in common law is premeditation, deliberateness, and willfulness PLUS intent (culpability). Second degree is only intent.
• Proof of premeditation can include (1) planning activity (2) facts about prior relationship or behavior with victim (3) evidence regarding nature or manner of the killing.
• Very difficult to distinguish. MPC and some states see premeditation same thing as intentionality and have no difference b/w first and second degree murder
• MPC (and NY) rejects premeditation and deliberation as the basis of grading murders. MPC §210.2(1)
• Commentary on MPC: In light of the fact that some spontaneous killings are completely depraved while some planned murders are more understandable, the notion that prior reflection should distinguish capital from non-capital murder is fundamentally unsound.
• Attempts to distinguish between premeditated murder and murder in sudden quarrels have largely failed.
• Young v. State AL 1982 p385 – fight breaks out during card game, shoots others. Court holds “premeditation and deliberation may be formed while the killer is pressing the trigger that fired the fatal shot”.
• State v. Forrest NC 1987 p390 , sobbing with emotion, shot his terminally ill father in the hospital. 1st degree murder conviction upheld.
C. Unintentional Homicide
1. Involuntary Manslaughter and Similar Offenses
MAJORITY: MPC creates manslaughter (MPC §210.3) and lesser crime of negligent homicide (MPC §210.4); negliegent homicide = culpability is > than ordinary tort negligence w/out requiring actual knowledge of the risk
Manslaughter is if consciously disregarded a risk, negligent if should have been aware of risk he was disregarding (using RPP standard).
Minority Some don't clearly distinguish b/n conscious and unconscious risk-taking (“wanton, willful, reckless”), See Welansky
Commonwealth v. Welansky MA 1944 (nightclub owner)
• Welansky was nightclub owner, sick at time of the fire. Club had confusing layout, poorly marked emergency exits. Employee lit a match, set fire, 100s people died in the fire / panic.
• charged with involuntary manslaughter through wanton & reckless conduct (surpasses gross negligence.
• Note: Different use of recklessness that doesn’t require knowledge, but the degree of the risk ignored.
• May not have been guilty even of negligent homicide under the MPC b/c have to show a substantial risk
Somewhat subjective standard
Dickerson v. State MS 1983
• drove his car into another car and killed its drunken driver, who had stopped the car with its lights off in the middle of the road.
• Holding: Contributory negligence is not a defense to manslaughter.
People v. Hall CO 2000 p415 (MPC influenced)
• Skier flies off knoll and hits victim who dies.
• Issue: consciously disregarded substantial and unjustifiable risk? i.e. reckless?
• Appellate: could be, wrong to dismiss
• Holding: A risk of death less than 50% can still be substantial depending on circumstances.
• Unjustifiable: risky skiing was for his own enjoyment
• He consciously disregarded this risk reckless manslaughter, not negligent homicide.
Objective standard
State v. Williams WA 1971 p418 (traditional) issue of omission
• Charged w/ manslaughter for negligently failing to supply their 17 month old child w/ medical attention. Law of ordinary negligence for manslaughter at the time.
• Both parents uneducated, thought baby had a toothache but didn’t take him to a doctor.
• They were afraid that social services would take the baby away if they brought him to a doctor.
• Holding: there’s enough evidence to support ordinary negligence enough for manslaughter.
• **This rule got repealed in 1975 and replaced w/ reckless manslaughter & criminal negligence.
The MPC on individualization:
Rejects a fully individualized standard, however allows some individualization by reference to “the care that would be exercised by a reasonable person in [the actor’s] situation. MPC comment to 2.02. (compare to EED)
Courts remain ambivalent or in conflict regarding the degree of individualization
State v. Everhart (NC 1977): young girl with IQ of 72 who accidently smothered baby to death because she thought it was born dead, not guilty. Held that because of low IQ and accidental nature of the death, the state had not proved culpable negligence
Edgmon v. State (Alaska 1985): individual capabilities can be considered, but peculiarities of a given individual – intelligence, experience, etc. are irrelevant
2. Unintentional Murder
a. Depraved Heart Murder
• Common law: 2nd degree murder, depraved heart, for creating a wildly unacceptable risk of death. Does not always require consciousness of risk. Does not require malevolence towards the victim.
• MPC: Murder, super recklessness, requires consciousness, 210.2(1)(b):
• distinguishes unintentional murder from manslaughter by adding that recklessness is an “extreme indifference to the value of human life”
• Assume “extreme indifference…” if committing or fleeing a felony
• “Felony murder” and “intentional causing serious bodily injury” can fit under here depending on facts—but no independent category for these crimes under MCP
• MPC § 2.08 – Intoxication. On balance, unawareness of a risk, of which the actor would have been aware had he been sober, is immaterial. Moral culpability lies in getting so drunk as to destroy the actor’s powers of perception and judgment.
1. Intoxication can negate knowledge (if not self-induced) (2.08(4)) but never recklessness (2.08(2)).
Commonwealth v. Malone PA 1946 p426 (depraved heart murder)
• 17 year old shot 13 year old victim playing Russian roulette. Charged w/ 2nd degree murder.
• Victim said go ahead, thought he put the bullet in the right most chamber, only pulled trigger 3 times.
• Holding: When commits act of gross recklessness for which death of another must be reasonably anticipated malice is found.
• An uncalled for act in callous disregard of likely harmful effect on others.
United States v. Fleming 4th Cir. 1984 p431 Majority rule (depraved heart murder)
• Fleming convicted of 2nd degree murder.
• Driving w/ .315 BAC, 70 mph in a 30 zone, going the wrong way.
• Holding: Difference between malice & gross negligence is one of degree rather than kind. Difference is the regard for human life.
• Not all drunk driving is disregard for human life, but particular facts he operated car with depraved heart murder.
• For MPC application with the same holding, this starts as a negligent homicide, then apply 2.08(2) (intoxication is no defense to recklessness, i.e. consciousness of risk), so becomes manslaughter (reckless), just need to show “extreme indifference…” prong and it would be murder.
b. Intent to Cause Serious Bodily Harm, with Death Resulting
• Common law held that intentional act to do no more than grievous bodily harm that causes death is still murder.
• Intent-to-inflict-grievous harm formula is followed in many jurisdictions. Some as remnant of common law, some explicitly by statute.
• Waldron: suggests that serious bodily injury is not defined narrowly - in a one punch fight that freakishly causes death, a college student is charged w/ murder (although eventually plead guilty to involuntary manslaughter, doubtful should have even been charged with this)
• MPC omitted this doctrine b/c they felt it was covered by the Depraved Heart standard of “reckless indifference to value of human life”.
3. Felony-Murder
a. The Rule and its Rationale
Common Law: Death caused in the commission of a felony is murder, where culpability is what is required as to committing or attempting to commit felony, but not as to causing death.
- Essentially a strict liability rule (via lesser crime theory: mens rea of a lesser offense may substitute for mens rea of a greater offense)
- 2/3 of states define felony-murder as first degree.
MPC §210.2(1)(b) “reckless with extreme indifference to human life” allows felony murder application only in cases involving robbery, rape, arson, burglary, kidnapping, or felonious escape. AND it’s only presumption that was murderously reckless, which can be rebutted by the . But not followed by almost any states.
• Death in the course of one the felonies, authorizes the assumption, of extreme indifference to human life
Why has Felony-Murder Rule persisted?
Almost all states still recognize it. Although occurrence of harm might be fortuitous, it doesn’t seem that way. When someone has died, a desire to establish social order / blame someone for the terrible calamity.
No attempt:
Can’t have attempted felony-murder. In general, felony murder doesn’t make sense for purposes of punishment
(e.g. deterrence: same w/o felony murder, still charged w/ homicide, don’t know penalty structure well enough; no proportionality—lesser crime theory)
CAUSATION: must establish both “but for” and proximate cause, but no foreseeability requirement (Similar to the concept of intent to cause serious bodily harm with death resulting)
People v. Stamp CA 1969 p438 Extreme example of strict liability
• robbed victim @ gunpoint. 10 min. after left, victim had a heart attack due to fight & died.
• got 1st degree murder; he’s strictly liable for all killings committed in the course of his felony.
• No foreseeability requirement.
• Note: w/o felony murder rule, couldn’t be charged with even negligent homicide
b. “Inherently Dangerous Felony” Requirement
Minority CA General Rule: predicate felony must be inherently dangerous (trying to limit rule):
People v. Phillips CA 1966 p447 (theft/fraud isn’t an inherently dangerous predicate felony)
• Victim = 8 yr. old child w/ cancer. said he could cure her and avoid surgeries, charged parents $400.
• Trial judge instructed 2nd degree murder could be found if was also guilty of grand theft.
• CA Supreme Court reversed, saying felony murder rule could only be triggered by felonies inherently dangerous to life.
• CA General Rule: predicate felony must be inherently dangerous (trying to limit rule)
Majority Rule (Specific fact rule for felony-murder): evaluate whether underlying felony was inherently dangerous based on facts of the case
People v. Stewart RI 1995 p448 probably majority rule
• Mother went on crack binge, didn’t feed or care for infant died of dehydration.
• Wrongfully permitted child to suffer (felony) 2nd degree felony murder.
• Specific Facts Rule: Takes a more specific facts approach then Phillips. Will evaluate if felony was dangerous on facts of this particular case conviction affirmed.
Hines v. State GA 2003 p450
• While hunting, Hines accidentally shot and killed his friend. Convicted of felony murder based on underlying possession of a firearm by a convicted felon.
• Holding: (specific fact rule): evaluate whether the underlying felony was inherently dangerous based on facts of the case.
• had been drinking, took a sketchy shot @ dusk knowing other hunters were in the area conviction affirmed.
c. Felony must be “Independent”
Because already part of murder charge:
• Excludes lesser homicide and assault as predicate felonies
• Excludes assault with a deadly weapon (Ireland) – CA courts reject bootstrapping effect
• Excludes assault with a deadly weapon (entry w/ intent to commit assault with a deadly weapon)—Wilson
• Includes: burglary (entry w/ intent to commit larceny)
• Includes armed robbery (larceny by force w/ weapon)—Burton (because theft is an independent purpose)
• Grading system wouldn’t work at all if all homicides could be predicate for felony-murder.
• Widespread agreement that a felonious assault can’t serve as the predicate felony that automatically makes any death a murder.
People v. Burton CA 1971 p438
• killed a person during an armed robbery. Convicted under felony-murder of 1st degree murder.
• argued his case was like Wilson, where a man broke into a house to assault wife and the prosecution tried to use burglary (but with the purpose of assault with a deadly weapon) as the supporting felony. But no felony-murder for Wilson b/c of assault.
• Holding: With armed robbery, there is independent felonious purpose of theft. Legislature has said if death occurs during that felony felony murder rule applies. Conviction upheld.
Hanson—fired a gun into an occupied building, considered a predicate felony!!
Two tests for the merger rule of felony murder:
but the basic question is whether the crime is assaultive or not.
-The “independent purpose” test – used in California, criticized by academics. In People v. Robertson a man tried to scare away someone who was stealing his hubcaps, but accidentally shot him. Because his felonious purpose (to scare) was independent of the homicide, the prosecution didn’t have to prove malice. But a rule relieving the prosecution of the need to prove malice because the defendant asserts he did not harbor any is problematic.
-Included in fact = lesser included offense. If you commit armed robbery you’ve necessarily committed robbery. If you’ve committed murder you’ve necessarily committed assault. Independent purpose looks at the purpose.
Lesser Included Offense
• Armed bank robbery necessarily includes bank robbery. A lesser included offense exists when you can’t commit the greater offense without also committing the lesser.
• Assault with intent to kill
• Necessarily included elements approach: battery is not a lesser included offense b/c assault doesn’t require actual harm but battery does
• Cognate evidence approach: battery is a lesser included offense—fuzzier standard
• Point: 2nd degree murder, voluntary manslaughter are both lesser included offensive of first degree murder
d. In “Furtherance of the Felony” Rule
RULE: Agency and Proximate Cause Theory (3 variants of the Rule):
1) agency rule—killer has to be a co-felon in the furtherance of a felon (Canola)
2) felony-murder applies only when victim is an innocent (i.e. also applies if owner shot bystander)
3) proximate cause—felony murder for anyone killed
**Lots of states have taken a proximate cause approach to determine if a killing was “in furtherance of the felony”. P463
State v. Canola NJ 1977 p460 (Agency theory)
• and 3 co-felons were robbing a store. In process, one of the victims of the robbery shot and killed one of the co-felons; victim also killed
• Holding: Traditional rule is felony-murder doesn’t extend if directly attributable to act of non- or co-felon. “Agency theory” of felony-murder. Convicted for killing victim, not for victim shooting co-∆
• Exception in human shield cases felony murder definitely applies if shield is shot by police or third party.
• Modern trend is to limit application of the felony murder rule won’t apply in this particular case.
Killings after the felony has ended?:
People v. Gills (Mich 2006):
1. Killing by hitting with car while escaping felony even after 10 miles from felony is sufficient to support felony-murder conviction. A felony continues to be “perpetrated” during D’s efforts to escape.
State v. Amaro:
2. upholding conviction after arrest where one of D’s co-felons trying to evade arrest shot and killed officer searching the house (felon’s act was foreseeable and in furtherance of common design)
In furtherance of objectives?
State v. Heinlein (DC 1973): woman being raped by three men slapped one and then was killed by him. Other two not guilty of murder because Heinlein’s unanticipated actions, not in furtherance of the common plan could not be attributed to them.
People v. Cabaltero (Cal 1939): lookout during robbery panicked and fired shots at passing car. Leader of the group shot and killed lookout (co-felon) because of his stupidity. Court found all members involved in robbery guilty of murder under a statute declaring all murder committed in the perpetuation of a robbery as murder in the first. Court thought that the shooting was connected to the ongoing felony and therefore not the shooter’s “frolic of his own”
Limitation on casual element: (not proximate cause)
King v. Commonwealth: D not responsible for accomplice’s death in plane crash while smuggling marijuana because the illegal activity did not make death more probable.
Misdemeanor-Manslaughter
Junior varsity version of felony-murder – provides basis for invol. Manslaughter conviction w/out proof of recklessness/negligence
i.e. If a defendant drives through a red light and kills a pedestrian, he can be convicted of involuntary manslaughter on the basis of criminal negligence.
Proximate Cause limitation: required between misdemeanor and death (e.g., expiration of driving license has no causal connection to accident caused by another driver)
D. Capital Murder
Furman v. Georgia: (Arbitrariness) SCOTUS ruled death penalty violated the 8th amendment as cruel and unusual punishment since used too arbitrarily, infrequently, discriminatory.
Ruling that no fixed and predetermined subset of murders merited death in every circumstance
But, Post-Furman reform viewed as inherently rational and fair! (See discrimination cases like McClesky)
States reformed their codes.
1) Mandatory sentences (Woodson—struck down, needs more individualization)
2) Guided Discretion Statutes (e.g. GA, TX)
1) E.g. Georgia’s revised guided individualized discretion statute - modeled after MPC:
• Separate trial on sentencing issue; after regular guilt / innocence trial
• Legislature must narrow offenses eligible for capital punishment aggravating factors. Sentencing jury must find at least 1 aggravating factor. (p 484, fn, §10)
a. Can consider other aggravating or mitigating circumstances
b. Problem: still pretty arbitrary since so many factors can be considered
• State supreme court oversees review of sentences to ensure regularity / non-arbitrariness.
**TX is a bit different, but most other states have something like this.
• Beyond murder, treason & espionage can have capital punishment.
• Not rape, especially because of history of racial prejudice in rape prosecution in the South. Coker v. Georgia
Limits: Cannot Impose Death Penalty on:
• Offenses: rape, rape of child <12 (with no death resulting or intended), defendant not the killer, not intentional
• Offender: juveniles, mentally retarded
Co-felon: Enmund v. Florida (1982): 8th amendment prohibits death penalty on a D who does not himself kill, attempt to kill, or intend killing take place.
Revised holding in Edmund: Co-felon major participation: Tyson v. Arizona (1987) “major participation in the felony and reckless indifference to life satisfied the Enmund culpability requirement.”
Gregg v. Georgia US 1976 (upheld GA’s new system of Guided Discretion above)
• Gregg convicted of 2 counts of armed robbery and 2 murder. Sentenced to death.
• Holding: Punishment of death doesn’t invariably violate the 8th and 14th amendments.
• Rule: Excessiveness is (1) gross infliction of pain (2) disproportionality to the crime.
• Judiciary can’t act as a legislature.
• History & precedent support capital punishment.
• 2 functions – retribution & deterrence.
• Georgia had modified it’s procedural deficiencies post-Furman
McCleskey v. Kemp US 1988 (arbitrariness/racism)
Court rejected Δ of racial discrimination in sentencing for capital murder
• Does study showing racial bias in capital punishment sentencing show McCleskey’s sentence is unconstitutional under 8th & 14th amendments?
• McCleskey (black) killed a white police officer when robbing a store.
• Baldus study showed greatly disparate sentencing: most likely to get death penalty when victim is white (being black is only slight aggravating factor).
• Holding: For McCleskey to win, he’d have to show that officials had a racially discriminatory purpose in applying the death penalty in this very case. Can’t show this--eliminates use of stats…
• Getting rid of capital punishment would be a job for the legislature, not the courts.
• Dissent (Brennan): high risk of discrimination = arbitrariness.
• Have to consider Georgia’s racial penal code history.
A. Grading
Concepts: pg. ______ Bentham (punishment must be enough to deter), Gross (proportionality), Honoré (Deterrent theory), Ewing (Moral disapproval, but disproportionate will discredit legal system), Fitzjames Stephen (retribution > deterrence), Hart (moral wickedness as partial determinant)
AM 44-45 (Plea bargaining)
Proportionality:
- Moralism
o Intrinsic difference between moral culpability in relation to different types of crimes
o Should be in proportion to values and public focus on crime rather than suffering inflicted
- Proportionality
o Utilitarianism
B. Intentional Homicide
Common law murder:
Elements:
Malice can mean:
1. Intentional Murder
2. Depraved heart murder
3. Intentionally causing serious bodily injury with death resulting
a. The effect of this depends on how narrowly grievous bodily injury is interpreted. May not even need it though, because many attacks could just fall under depraved heart murder. If it’s broadly defined, however, it might not. The rule can have big implications for those who fight (Waldon one-punch case).
4. Felony Murder
Homicide Material Elements:
1. Conduct Any act (or culpable omission) [plus accompanying culpability]
2. Result Death [plus accompanying culpability]
Malice aforethought is result cul.
Intentional homicide: purposefully or knowingly (result)
1. Murder v. Voluntary Manslaughter
a. Common Law Standard – Provocation
Provocation reduces homicide from murder to voluntary manslaughter
• Common law: (heat of passion) reason was disturbed so much cause the reasonable, ordinary man act out of passion
• MPC: extreme emotion/metal disturbance (see next section)
Legally sufficient provocation: mutual combat, serious assault, false arrest, abuse or injury of close relative, sometimes adultery.
• verbal provocation is insufficient (Girouard, exception: Maher)
Girouard v. State MD 1991 p390 – Majority rule: verbal provocation insufficient as matter of law
1. Wife makes lots of insults, husband stabs her 19 times but then tries to slit his own wrists. Calls police and confesses.
2. Holding: there wasn’t adequate to mitigate 2nd degree murder to voluntary manslaughter.
3. Rule: Verbal provocation is insufficient to mitigate. Judge determines whether provocation exists as a matter of law.
4. Objective/reasonableness standard - ’s state of mind can’t change it.
Maher v. People MI 1862 p392 – Minority rule: verbal provocation sufficient to send to jury
5. Maher learned that victim was committing adultery with his wife. 1 hr. later walks into saloon & shoots him. *didn’t kill him, but found guilty of assault w/ intent to murder
6. Holding: sufficient evidence of provocation (vs. sufficient deliberation and cooling time) to send question to jury, then if instead it only would have been manslaughter, then charge would be reduce to assault and battery
7. Rule: circumstances where ordinary man’s mind would be obscured by passion.
8. Objective reasonableness unless weakness of mind or infirmity of temper can be shown Jury Q case by case
Other Concepts
• Cooling time: traditionally, sufficient cooling time eliminates sufficient legal provocation. A small number of jurisdictions allow for “rekindling”.
• See State v. Gounagias p.399?
• If is claiming provocation, he can’t have provoked the provoker. Regina v. Johnson p401.
• In the minority of jurisdictions where provocation is a question of fact ≈ jury decision Even if there’s video evidence, it’s still a “question of fact”. p394 Maher.
b. MPC 210.3(1)(b)– Extreme Emotional Distress (aka MPC Provocation)
Followed by just 10 states.
• “Extreme emotional disturbance” is a broadening of common law “heat of passion”
• EED Rule: 1) Acted under EED; 2) reasonable explanation or excuse for EED.
• MPC also doesn’t have a “hot blood” requirement—allows for cooling time, brooding.
• Common Law approach focuses on the act of the provoker, MPC focused more on the subjective culpability of the killer, although there is still a modified objective standard (the reasonable person in the actor’s position).
• Modified objective will NOT take into account culture, mental disorder.
• Will consider age, sex
People v. Casassa NY 1980 p401 (guilty of 2nd degree, no mitigation for EED)
• Casasa and Lo Consolo dated casually for a few months. Lo Consolo broke it off.
• Casassa tried to reconcile with her, she refused, he stabbed her throat and then drowned her to make sure she was dead.
• Holding: Legislature uses MPC for extreme emotional disturbance except the burden of proof is on the .
• EED Rule: 1) Acted under EED; 2) reasonable explanation or excuse for EED.
• Excuse offered by was so peculiar to him that it is unworthy of mitigation/unreasonable.
c. Subjective, Objective, and Individualized Standards
• MPC says determination of reasonableness shall be made “from the viewpoint of the person in the actor’s situation under the circumstance as he believes them to be”.
• In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen (juror). (This is actually from the MPC commentary)
• Deliberate fudge that tosses the question to the jury.
Battered women: mixed whether battered women get reasonable person standard vs. reasonable person with history of being abused, etc:
State v. McLain (NJ 1991): Woman killed abusive husband. The court held that evidence of battered woman syndrome was irrelevant because provocation uses the “reasonable person” test.
State v. Felton (Wis 1983): Court allowed objective test meaning how a similarly situated person would react to the provocation. (ordinary person who is a battered spouse)
Mental disorder: (Not considered in semi-objective test)
State v. Kilmas (Wis 1979): D tried to use mental distress as adequate provocation for killing wife. Trial judge ruled psychiatric evidence irrelevant and therefore inadmissible.
People v. Steele (Cal 2001): inadmissible in case where Vietnam vet snapped when he heard sound of an approaching helicopter.
2. First v. Second Degree: The Premeditation Formula
Difference b/w first and second degree in common law is premeditation, deliberateness, and willfulness PLUS intent (culpability). Second degree is only intent.
• Proof of premeditation can include (1) planning activity (2) facts about prior relationship or behavior with victim (3) evidence regarding nature or manner of the killing.
• Very difficult to distinguish. MPC and some states see premeditation same thing as intentionality and have no difference b/w first and second degree murder
• MPC (and NY) rejects premeditation and deliberation as the basis of grading murders. MPC §210.2(1)
• Commentary on MPC: In light of the fact that some spontaneous killings are completely depraved while some planned murders are more understandable, the notion that prior reflection should distinguish capital from non-capital murder is fundamentally unsound.
• Attempts to distinguish between premeditated murder and murder in sudden quarrels have largely failed.
• Young v. State AL 1982 p385 – fight breaks out during card game, shoots others. Court holds “premeditation and deliberation may be formed while the killer is pressing the trigger that fired the fatal shot”.
• State v. Forrest NC 1987 p390 , sobbing with emotion, shot his terminally ill father in the hospital. 1st degree murder conviction upheld.
C. Unintentional Homicide
1. Involuntary Manslaughter and Similar Offenses
MAJORITY: MPC creates manslaughter (MPC §210.3) and lesser crime of negligent homicide (MPC §210.4); negliegent homicide = culpability is > than ordinary tort negligence w/out requiring actual knowledge of the risk
Manslaughter is if consciously disregarded a risk, negligent if should have been aware of risk he was disregarding (using RPP standard).
Minority Some don't clearly distinguish b/n conscious and unconscious risk-taking (“wanton, willful, reckless”), See Welansky
Commonwealth v. Welansky MA 1944 (nightclub owner)
• Welansky was nightclub owner, sick at time of the fire. Club had confusing layout, poorly marked emergency exits. Employee lit a match, set fire, 100s people died in the fire / panic.
• charged with involuntary manslaughter through wanton & reckless conduct (surpasses gross negligence.
• Note: Different use of recklessness that doesn’t require knowledge, but the degree of the risk ignored.
• May not have been guilty even of negligent homicide under the MPC b/c have to show a substantial risk
Somewhat subjective standard
Dickerson v. State MS 1983
• drove his car into another car and killed its drunken driver, who had stopped the car with its lights off in the middle of the road.
• Holding: Contributory negligence is not a defense to manslaughter.
People v. Hall CO 2000 p415 (MPC influenced)
• Skier flies off knoll and hits victim who dies.
• Issue: consciously disregarded substantial and unjustifiable risk? i.e. reckless?
• Appellate: could be, wrong to dismiss
• Holding: A risk of death less than 50% can still be substantial depending on circumstances.
• Unjustifiable: risky skiing was for his own enjoyment
• He consciously disregarded this risk reckless manslaughter, not negligent homicide.
Objective standard
State v. Williams WA 1971 p418 (traditional) issue of omission
• Charged w/ manslaughter for negligently failing to supply their 17 month old child w/ medical attention. Law of ordinary negligence for manslaughter at the time.
• Both parents uneducated, thought baby had a toothache but didn’t take him to a doctor.
• They were afraid that social services would take the baby away if they brought him to a doctor.
• Holding: there’s enough evidence to support ordinary negligence enough for manslaughter.
• **This rule got repealed in 1975 and replaced w/ reckless manslaughter & criminal negligence.
The MPC on individualization:
Rejects a fully individualized standard, however allows some individualization by reference to “the care that would be exercised by a reasonable person in [the actor’s] situation. MPC comment to 2.02. (compare to EED)
Courts remain ambivalent or in conflict regarding the degree of individualization
State v. Everhart (NC 1977): young girl with IQ of 72 who accidently smothered baby to death because she thought it was born dead, not guilty. Held that because of low IQ and accidental nature of the death, the state had not proved culpable negligence
Edgmon v. State (Alaska 1985): individual capabilities can be considered, but peculiarities of a given individual – intelligence, experience, etc. are irrelevant
2. Unintentional Murder
a. Depraved Heart Murder
• Common law: 2nd degree murder, depraved heart, for creating a wildly unacceptable risk of death. Does not always require consciousness of risk. Does not require malevolence towards the victim.
• MPC: Murder, super recklessness, requires consciousness, 210.2(1)(b):
• distinguishes unintentional murder from manslaughter by adding that recklessness is an “extreme indifference to the value of human life”
• Assume “extreme indifference…” if committing or fleeing a felony
• “Felony murder” and “intentional causing serious bodily injury” can fit under here depending on facts—but no independent category for these crimes under MCP
• MPC § 2.08 – Intoxication. On balance, unawareness of a risk, of which the actor would have been aware had he been sober, is immaterial. Moral culpability lies in getting so drunk as to destroy the actor’s powers of perception and judgment.
1. Intoxication can negate knowledge (if not self-induced) (2.08(4)) but never recklessness (2.08(2)).
Commonwealth v. Malone PA 1946 p426 (depraved heart murder)
• 17 year old shot 13 year old victim playing Russian roulette. Charged w/ 2nd degree murder.
• Victim said go ahead, thought he put the bullet in the right most chamber, only pulled trigger 3 times.
• Holding: When commits act of gross recklessness for which death of another must be reasonably anticipated malice is found.
• An uncalled for act in callous disregard of likely harmful effect on others.
United States v. Fleming 4th Cir. 1984 p431 Majority rule (depraved heart murder)
• Fleming convicted of 2nd degree murder.
• Driving w/ .315 BAC, 70 mph in a 30 zone, going the wrong way.
• Holding: Difference between malice & gross negligence is one of degree rather than kind. Difference is the regard for human life.
• Not all drunk driving is disregard for human life, but particular facts he operated car with depraved heart murder.
• For MPC application with the same holding, this starts as a negligent homicide, then apply 2.08(2) (intoxication is no defense to recklessness, i.e. consciousness of risk), so becomes manslaughter (reckless), just need to show “extreme indifference…” prong and it would be murder.
b. Intent to Cause Serious Bodily Harm, with Death Resulting
• Common law held that intentional act to do no more than grievous bodily harm that causes death is still murder.
• Intent-to-inflict-grievous harm formula is followed in many jurisdictions. Some as remnant of common law, some explicitly by statute.
• Waldron: suggests that serious bodily injury is not defined narrowly - in a one punch fight that freakishly causes death, a college student is charged w/ murder (although eventually plead guilty to involuntary manslaughter, doubtful should have even been charged with this)
• MPC omitted this doctrine b/c they felt it was covered by the Depraved Heart standard of “reckless indifference to value of human life”.
3. Felony-Murder
a. The Rule and its Rationale
Common Law: Death caused in the commission of a felony is murder, where culpability is what is required as to committing or attempting to commit felony, but not as to causing death.
- Essentially a strict liability rule (via lesser crime theory: mens rea of a lesser offense may substitute for mens rea of a greater offense)
- 2/3 of states define felony-murder as first degree.
MPC §210.2(1)(b) “reckless with extreme indifference to human life” allows felony murder application only in cases involving robbery, rape, arson, burglary, kidnapping, or felonious escape. AND it’s only presumption that was murderously reckless, which can be rebutted by the . But not followed by almost any states.
• Death in the course of one the felonies, authorizes the assumption, of extreme indifference to human life
Why has Felony-Murder Rule persisted?
Almost all states still recognize it. Although occurrence of harm might be fortuitous, it doesn’t seem that way. When someone has died, a desire to establish social order / blame someone for the terrible calamity.
No attempt:
Can’t have attempted felony-murder. In general, felony murder doesn’t make sense for purposes of punishment
(e.g. deterrence: same w/o felony murder, still charged w/ homicide, don’t know penalty structure well enough; no proportionality—lesser crime theory)
CAUSATION: must establish both “but for” and proximate cause, but no foreseeability requirement (Similar to the concept of intent to cause serious bodily harm with death resulting)
People v. Stamp CA 1969 p438 Extreme example of strict liability
• robbed victim @ gunpoint. 10 min. after left, victim had a heart attack due to fight & died.
• got 1st degree murder; he’s strictly liable for all killings committed in the course of his felony.
• No foreseeability requirement.
• Note: w/o felony murder rule, couldn’t be charged with even negligent homicide
b. “Inherently Dangerous Felony” Requirement
Minority CA General Rule: predicate felony must be inherently dangerous (trying to limit rule):
People v. Phillips CA 1966 p447 (theft/fraud isn’t an inherently dangerous predicate felony)
• Victim = 8 yr. old child w/ cancer. said he could cure her and avoid surgeries, charged parents $400.
• Trial judge instructed 2nd degree murder could be found if was also guilty of grand theft.
• CA Supreme Court reversed, saying felony murder rule could only be triggered by felonies inherently dangerous to life.
• CA General Rule: predicate felony must be inherently dangerous (trying to limit rule)
Majority Rule (Specific fact rule for felony-murder): evaluate whether underlying felony was inherently dangerous based on facts of the case
People v. Stewart RI 1995 p448 probably majority rule
• Mother went on crack binge, didn’t feed or care for infant died of dehydration.
• Wrongfully permitted child to suffer (felony) 2nd degree felony murder.
• Specific Facts Rule: Takes a more specific facts approach then Phillips. Will evaluate if felony was dangerous on facts of this particular case conviction affirmed.
Hines v. State GA 2003 p450
• While hunting, Hines accidentally shot and killed his friend. Convicted of felony murder based on underlying possession of a firearm by a convicted felon.
• Holding: (specific fact rule): evaluate whether the underlying felony was inherently dangerous based on facts of the case.
• had been drinking, took a sketchy shot @ dusk knowing other hunters were in the area conviction affirmed.
c. Felony must be “Independent”
Because already part of murder charge:
• Excludes lesser homicide and assault as predicate felonies
• Excludes assault with a deadly weapon (Ireland) – CA courts reject bootstrapping effect
• Excludes assault with a deadly weapon (entry w/ intent to commit assault with a deadly weapon)—Wilson
• Includes: burglary (entry w/ intent to commit larceny)
• Includes armed robbery (larceny by force w/ weapon)—Burton (because theft is an independent purpose)
• Grading system wouldn’t work at all if all homicides could be predicate for felony-murder.
• Widespread agreement that a felonious assault can’t serve as the predicate felony that automatically makes any death a murder.
People v. Burton CA 1971 p438
• killed a person during an armed robbery. Convicted under felony-murder of 1st degree murder.
• argued his case was like Wilson, where a man broke into a house to assault wife and the prosecution tried to use burglary (but with the purpose of assault with a deadly weapon) as the supporting felony. But no felony-murder for Wilson b/c of assault.
• Holding: With armed robbery, there is independent felonious purpose of theft. Legislature has said if death occurs during that felony felony murder rule applies. Conviction upheld.
Hanson—fired a gun into an occupied building, considered a predicate felony!!
Two tests for the merger rule of felony murder:
but the basic question is whether the crime is assaultive or not.
-The “independent purpose” test – used in California, criticized by academics. In People v. Robertson a man tried to scare away someone who was stealing his hubcaps, but accidentally shot him. Because his felonious purpose (to scare) was independent of the homicide, the prosecution didn’t have to prove malice. But a rule relieving the prosecution of the need to prove malice because the defendant asserts he did not harbor any is problematic.
-Included in fact = lesser included offense. If you commit armed robbery you’ve necessarily committed robbery. If you’ve committed murder you’ve necessarily committed assault. Independent purpose looks at the purpose.
Lesser Included Offense
• Armed bank robbery necessarily includes bank robbery. A lesser included offense exists when you can’t commit the greater offense without also committing the lesser.
• Assault with intent to kill
• Necessarily included elements approach: battery is not a lesser included offense b/c assault doesn’t require actual harm but battery does
• Cognate evidence approach: battery is a lesser included offense—fuzzier standard
• Point: 2nd degree murder, voluntary manslaughter are both lesser included offensive of first degree murder
d. In “Furtherance of the Felony” Rule
RULE: Agency and Proximate Cause Theory (3 variants of the Rule):
1) agency rule—killer has to be a co-felon in the furtherance of a felon (Canola)
2) felony-murder applies only when victim is an innocent (i.e. also applies if owner shot bystander)
3) proximate cause—felony murder for anyone killed
**Lots of states have taken a proximate cause approach to determine if a killing was “in furtherance of the felony”. P463
State v. Canola NJ 1977 p460 (Agency theory)
• and 3 co-felons were robbing a store. In process, one of the victims of the robbery shot and killed one of the co-felons; victim also killed
• Holding: Traditional rule is felony-murder doesn’t extend if directly attributable to act of non- or co-felon. “Agency theory” of felony-murder. Convicted for killing victim, not for victim shooting co-∆
• Exception in human shield cases felony murder definitely applies if shield is shot by police or third party.
• Modern trend is to limit application of the felony murder rule won’t apply in this particular case.
Killings after the felony has ended?:
People v. Gills (Mich 2006):
1. Killing by hitting with car while escaping felony even after 10 miles from felony is sufficient to support felony-murder conviction. A felony continues to be “perpetrated” during D’s efforts to escape.
State v. Amaro:
2. upholding conviction after arrest where one of D’s co-felons trying to evade arrest shot and killed officer searching the house (felon’s act was foreseeable and in furtherance of common design)
In furtherance of objectives?
State v. Heinlein (DC 1973): woman being raped by three men slapped one and then was killed by him. Other two not guilty of murder because Heinlein’s unanticipated actions, not in furtherance of the common plan could not be attributed to them.
People v. Cabaltero (Cal 1939): lookout during robbery panicked and fired shots at passing car. Leader of the group shot and killed lookout (co-felon) because of his stupidity. Court found all members involved in robbery guilty of murder under a statute declaring all murder committed in the perpetuation of a robbery as murder in the first. Court thought that the shooting was connected to the ongoing felony and therefore not the shooter’s “frolic of his own”
Limitation on casual element: (not proximate cause)
King v. Commonwealth: D not responsible for accomplice’s death in plane crash while smuggling marijuana because the illegal activity did not make death more probable.
Misdemeanor-Manslaughter
Junior varsity version of felony-murder – provides basis for invol. Manslaughter conviction w/out proof of recklessness/negligence
i.e. If a defendant drives through a red light and kills a pedestrian, he can be convicted of involuntary manslaughter on the basis of criminal negligence.
Proximate Cause limitation: required between misdemeanor and death (e.g., expiration of driving license has no causal connection to accident caused by another driver)
D. Capital Murder
Furman v. Georgia: (Arbitrariness) SCOTUS ruled death penalty violated the 8th amendment as cruel and unusual punishment since used too arbitrarily, infrequently, discriminatory.
Ruling that no fixed and predetermined subset of murders merited death in every circumstance
But, Post-Furman reform viewed as inherently rational and fair! (See discrimination cases like McClesky)
States reformed their codes.
1) Mandatory sentences (Woodson—struck down, needs more individualization)
2) Guided Discretion Statutes (e.g. GA, TX)
1) E.g. Georgia’s revised guided individualized discretion statute - modeled after MPC:
• Separate trial on sentencing issue; after regular guilt / innocence trial
• Legislature must narrow offenses eligible for capital punishment aggravating factors. Sentencing jury must find at least 1 aggravating factor. (p 484, fn, §10)
a. Can consider other aggravating or mitigating circumstances
b. Problem: still pretty arbitrary since so many factors can be considered
• State supreme court oversees review of sentences to ensure regularity / non-arbitrariness.
**TX is a bit different, but most other states have something like this.
• Beyond murder, treason & espionage can have capital punishment.
• Not rape, especially because of history of racial prejudice in rape prosecution in the South. Coker v. Georgia
Limits: Cannot Impose Death Penalty on:
• Offenses: rape, rape of child <12 (with no death resulting or intended), defendant not the killer, not intentional
• Offender: juveniles, mentally retarded
Co-felon: Enmund v. Florida (1982): 8th amendment prohibits death penalty on a D who does not himself kill, attempt to kill, or intend killing take place.
Revised holding in Edmund: Co-felon major participation: Tyson v. Arizona (1987) “major participation in the felony and reckless indifference to life satisfied the Enmund culpability requirement.”
Gregg v. Georgia US 1976 (upheld GA’s new system of Guided Discretion above)
• Gregg convicted of 2 counts of armed robbery and 2 murder. Sentenced to death.
• Holding: Punishment of death doesn’t invariably violate the 8th and 14th amendments.
• Rule: Excessiveness is (1) gross infliction of pain (2) disproportionality to the crime.
• Judiciary can’t act as a legislature.
• History & precedent support capital punishment.
• 2 functions – retribution & deterrence.
• Georgia had modified it’s procedural deficiencies post-Furman
McCleskey v. Kemp US 1988 (arbitrariness/racism)
Court rejected Δ of racial discrimination in sentencing for capital murder
• Does study showing racial bias in capital punishment sentencing show McCleskey’s sentence is unconstitutional under 8th & 14th amendments?
• McCleskey (black) killed a white police officer when robbing a store.
• Baldus study showed greatly disparate sentencing: most likely to get death penalty when victim is white (being black is only slight aggravating factor).
• Holding: For McCleskey to win, he’d have to show that officials had a racially discriminatory purpose in applying the death penalty in this very case. Can’t show this--eliminates use of stats…
• Getting rid of capital punishment would be a job for the legislature, not the courts.
• Dissent (Brennan): high risk of discrimination = arbitrariness.
• Have to consider Georgia’s racial penal code history.
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