Chapter Nine

Crimes Against Persons: Homicide

Joel Samaha

Chapter Nine: Learning Objectives

Understand that criminal homicide is different from all other crimes because of the finality of its result: the death of the victim.

Appreciate that most of the law of criminal homicide is about grading the seriousness of the offense. Grading murder into first and second degree is important because only first-degree murder qualifies for the death penalty.

Appreciate that the meaning of “person” is integral to homicide law and understand how that presents problems at both ends of the life cycle.

Understand how degrees of murder developed through history and their relation to capital punishment.

Know the elements of murder. Learn the degrees of murder

that exist in the United States today.

Know the definition, history and current use of felony murder as a charge.

Understand that most criminal homicide statutes can be applied to corporations, but prosecutions are rare.

Learning Objectives (cont.) Understand that the heart

of voluntary manslaughter is an intentional, sudden killing triggered by an adequate provocation.

Know that provocation is not an excuse for criminal homicide; it only reduces the seriousness of the crime and the punishment to allow for human frailty.

Know that the central elements in involuntary manslaughter are its actus reus, mens rea; causing the criminal harm of death.

Understand that criminal negligence homicide statutes cover a wide field, including the most common, unintentional deaths caused by operating vehicles and firearms, but also medicine, handling explosives, delivering dangerous drugs, allowing vicious animals to run free, failing to care for a sick child, and not providing fire exits in businesses.

Death is Different Criminal Homicide is rare Much of the law discussed earlier

grew out of criminal homicide cases• mens rea issues • Self defense issues

Three step analysis of criminal liability (criminal conduct? Without justification? Without excuse?) grew out of the work on criminal homicide

Homicide Most homicide discussions deal with issues of

grading the crime because the punishment for criminal homicide depends on the degree of murder or the type of manslaughter committed• Issue of how much punishment should we inflict upon

people who kill other people? Capital punishment? Lifetime incarceration? Fines?

• Tremendous variances among states and federal governments concerning classifying and punishing different types of criminal homicide

*Criminal homicide involves killing a person*Requires a definition of person:When does life begin?When does life end?

When does life begin? Common law followed

the born alive rule• To be a person (and thus

to be capable of being a homicide victim) the baby had to be born alive

• State v. Cotton Because baby was born alive, it

didn’t matter that defendant had caused the injury leading to her death while she was in utero.

• Keeler v. Superior Court: California court refused to

extend the definition of person to include fetuses born before the birth process. Overturned conviction of Keeler who had caused death of wife’s unborn fetus by kicking her.

Some states have revised existing homicide statutes to include persons and fetuses as potential homicide victims

Some states have created the crime of feticide, directed at the killing of fetuses• Viability?• Quickening?• At conception?

When Does Life End? Historically death

occurred when the heart and breathing stopped

Modern medicine makes this determination more complicated—organ transplants, artificial life support

Accelerating a persons death is criminal homicide• State v. Fiero

Brain death• Complicates the

criminal homicide determination

• Uniform Brain Death Act Individual who has

suffered irreversible cessation of all brain functions, including those of the brain stem, is dead

Coma• Troubling cases

Murder Homicide divided

into: • criminal homicide

and • noncriminal

homicide Justifiable homicide

Excusable homicide

Common Law divided criminal homicide into • Murder

Killing a person with malice aforethought

• Manslaughter Killing a person

without malice aforethought

Malice Aforethought Malice = specific intent, killing on

purpose with ill will, hate or spite Aforethought = acts planned in advance

• Express malice aforethought (early common law)

• Implied malice aforethought (as law developed) Intentional killings that weren’t premeditated Unintended killings that occurred during a felony Extreme reckless killings (depraved heart killings) Intent to create serious bodily injury murder

Elements of Murder Actus reus – the act of killing Mens rea – killing with purpose,

knowledge or extreme recklessness Causation-the act caused the death Death Attendant circumstances

Kinds and Degrees of Murder Not formally divided under English

common law—all were felonies• Benefit of clergy—developed to mitigate

the harshness of the punishment (all felons were hanged)

• Dividing murders into degrees continuation of idea that not all felons, not even all murderers, should be executed

U.S. colonies/states, degrees of murder were created by legislatures

Most states divide homicide into two degrees, some divide it into threeMPC doesn’t use degrees, divides murders according to mental attitudes

First Degree Murder Premeditated, deliberate, intent to kill

murder Felony murder Only crime for which death penalty can be

imposed (capital cases) Death penalty issues complicate murder law

• Supreme Court decisions have resulted in following Mandatory death sentences are banned Unguided discretionary death penalty decisions are

banned Mitigating factors are required Additional aggravating factors are allowed

First Degree Murder, death penalty (cont.)

MPC recommendations re: death penalty• Bifurcation of the guilt determination

phase and the sentencing phase• Criteria for decision is limited and

announced before the decision to sentence the defendant to death Aggravating factors (see list) Mitigating factors (see list) Agg and Mit factors must be considered before

making decision

First Degree Murder

• Willfull, deliberate, and premeditated murder (The “grand criterion of murder”

• Something more than the intent to kill

• Often disagree what deliberate and premeditated mean

• Willfull = intent to kill• Premeditated = sufficient

time to enable the mind to frame the design to kill

• Deliberate = conscious of purpose and design

Voluntary act of killing many forms of killing Many statutes require

heinous atrocious or cruel acts to accomplish the actus reus of first degree murder

Mens Rea: Actus Reus:

Case: State v. Snowden

Facts: Snowden, the defendant, murdered Dean by cutting her throat with his pocket knife and was convicted of first degree, premeditated murder

Issue: Did Snowden premeditate and deliberately murder Dean?

Holding: Court determined that the time needed to remove the knife and cut the victim’s throat was sufficient time to show premeditation and deliberation. Thus, the court sustained the defendant’s murder conviction

The Deadly Weapon Doctrine

One who intentionally uses a deadly weapon on another human being and thereby kills him presumably intends to kill him

Case: Duest v. State

Facts: Duest, the defendant, was convicted of first-degree murder in a gay bashing killing during a robbery and was sentenced to death due to aggravating circumstances

Issue: Was the murder heinous, atrocious or cruel?

Holding: Facts of case were sufficient to find that defendant engaged in atrocious heinous and cruel murder• Multiple stab wounds• Statements that he intended to roll gay guys• Stole victim’s jewelry

Case: Commonwealth v. Golston

Facts: Golston, the defendant, hit the victim on the head with a baseball bat. The victim later died. Golston was sentenced to death.

Issue: Was beating the victim to death with a baseball bat atrocious first-degree murder?

Holding: Yes. There is no requirement that the defendant know that his acts were extremely atrocious or cruel

Second Degree Murder Second Degree murder statutes

include• implied malice crimes created by common

law judges (and retained by state statute)

• felony murders• intent to inflict serious bodily injury murders• depraved heart murders

Unintentional but extremely reckless murders Killing very very recklessly

Some state statutes make second degree murder the catch all category

Case: People v. Thomas

Facts: Thomas, the defendant, beat the victim with a rubber hose, striking him 30-100 times from his waist to feet. The victim died 9 days after the beating a pulmonary edema with the underlying cause of the trauma to his legs.

Issue: Did Thomas commit second-degree murder?

Holding: Malice or intent to kill may be inferred from the acts of the defendant. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.

Felony Murder Unintentional deaths that occur

during the commission of some felonies

States vary as to what felonies are included—some list the felonies

Variation regarding whether co-defendant’s death can be basis for felony murder

Third party exception; resisting victim exception

Some states say that felony murder applies to inherently dangerous felonies.”• Approach 1- Determine

whether felony is inherently dangerous by looking at the crime in the abstract

• Approach 2-determine whether the felony is inherently dangerous by looking at the facts presented in the case. (case by case approach)

Mens Rea:-Felony murder does not require the intent to either kill or inflict serious bodily injury -In that respect, they are sometimes considered “strict liability” crimes….but, remember that the actor must have the requisite mens rea to commit the underlying felony

Discussion ActivityReview the first-degree and second-degree murder statutes for your state.What are the elements of each charge?What is the maximum penalty for each?Does your state have degree’s of murder charges?

Case: People v. Phillips

Facts: Phillips, the defendant, represented that he could cure a seriously ill child, and charged money from the family. Phillips did not cure the child and she eventually died

Issue: Is grand theft an underlying felony for felony murder?

Holding: Applied the “inherently dangerous in the abstract” approach to felony murder and determined that fraud is not a crime which is inherently dangerous in the abstract (although in this case, defendant’s actions were probably inherently dangerous)

Corporate Murder Corporations commit murder through

the acts of their agents • Ford Pinto• Autumn Hills Convalescent Center

Concerns about corporate murder stem from concerns about vicarious liability in general (imputing acts of one to another)

Case: People v. O’Neil

Facts: Golab, the victim, died of acute cyanide poisoning through the inhalation of cyanide fumes in the plant air where he worked.

Issue: Did Film Recovery Systems murder their employee?

Holding: Court overturned appellate court’s decision ruling that corporate officers could not be guilty of involuntary murder. The supreme court looked at the actions of the officer’s and determined that the officers were responsible for running the plant the way they did, they knew of the dangers to their employees.

Manslaughter• Voluntary Manslaughter

• Intentional killing• Done in the sudden heat of passion• Without a cooling off period

– Objective test of cooling off time (would a reasonable person under the same circumstances had time to cool off)

• Because of legally adequate provocation – Provocation is both subjective

(defendant himself was provoked) and objective (reasonable person would be provoked)

– Types of provocation recognized Mutual combat, assault and

battery, trespass and adultery Paramour rule: common law

rule that held that a man who found his wife in the arms of her lover was not guilty of murder but rather voluntary manslaughter

– Words cannot be provocation (common law rule

– Last straw rule, smoldering resentment (Dennis v. State)

Involuntary Manslaughter Actus reus –killing Mens rea –unintentional

killing Causation Death Criminal negligence

manslaughter • Generally includes both

recklessness and negligence

Unlawful act manslaughter (aka misdemeanor manslaughter)• Deaths that occur during

the commission of unlawful acts

MPC Manslaughter Criminal homicide constitutes

manslaughter when; It is committed recklessly; or A homicide which would otherwise be

murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of the person in the actor’s situation

Case: Commonwealth v. Schnopps

Facts: Schnopps, the defendant, shot and killed his wife when she informed him she was never coming back to him. Schnopps argued he acted in the heat of passion and should be convicted of a lesser charge.

Issue: Did Schnopps commit first-degree murder?

Holding: Court concluded that the jury had sufficient evidence to find that defendant acted with deliberately, premeditated malice aforethought.

Case: Commonwealth v. Carr

Facts: Carr, the defendant, shot and killed Wight after seeing Wight and Brenner engaging in lesbian lovemaking. Carr argued past sexual abuse against him and his mothers lesbian relationship when he was a boy caused him to panic and he shot Wight in the heat of passion.

Issue: Did seeing the lesbian love making cause a “gay panic”?

Holding: Past injure or insult does not establish a foundation for manslaughter

Criminal Negligence Manslaughter

Criminal negligence manslaughter• Actus reus – defendant’s acts create a high

(substantial and unjustifiable risk of death or serious bodily injury)

• Mens rea – defendant is aware the risk of death or serious bodily injury is high but commits the acts anyway

Most of these crimes involve unintentional deaths caused by operating vehicles or firearms (aka vehicular homicide, or crim neg. hom.)

Discussion Activity

Review the link below regarding Minnesota’s Criminal Vehicular Injury & Homicide Sentencing Practices

What did you find interesting about this information?Were you surprised by the number of CVI v. CVH?What are your thoughts about the punishment for

theses offenses? Too tough, too lenient, just right?

http://www.msgc.state.mn.us/data_reports/2010/2010%20MN%20Sentencing%20Guidelines%20Comm%20CVH%20Report.pdf

Case: State v. Mays

Facts: Mays, the defendant, intended to nudge the victim with his car to “mess with” him. Instead he inadvertently ran him over and killed him.

Issue: Did Mays commit aggravated vehicular homicide?

Holding: Court held that although defendant did indeed commit vehicular homicide; he was not shown to have committed the worse form of vehicular homicide, so he couldn’t receive the sentencing maximum. “The harm caused by the offense, while senseless and tragic, was not greater than the harm caused in every other aggravated-vehicular-homicide case.”

Unlawful Act Manslaughter

Death that occurs during the commission of an unlawful act

Sometimes referred to as misdemeanor homicide

Encompasses any type of unlawful act (look at statutes)

People v. Datema• Husband slapped wife once, but she didn’t

tense up her neck (alcohol and marijuana in her system) and had a torn artery which resulted in her death. Defendant’s conviction upheld

Doctor Assisted Suicide

Euthanasia = helping others die

Historically assisting another to commit suicide was criminal homicide (and still is in most jurisdictions)

Passive euthanasia: failing to take extraordinary measures to keep someone alive

Active euthanasia: deliberate acts to cause death

Voluntary euthanasia: dying person makes rational request

Involuntary euthanasia: no request by dying person, but decision by family/court for • Good reasons =

beneficient• Bad intentions =

malevolent

Doctor-Assisted Suicide Arguments Against:

• Intrinsically immoral• Slippery Slope

Mistakes, malevolent purposes, potential for wrong diagnosis, threat of non-mercy killings are too great to justify an exception.

• Societal interests at stake

Arguments in Favor• Not an argument

FOR euthanasia, its an argument against pain

• Compassion• Constitutional Right

Presumption of bodily integrity

liberty interest guaranteed in 5th and 14th Amendments include the right to die

Constitutional Right to Doctor-Assisted Suicide

Washington v. Glucksberg• U.S. Supreme Court upheld Washington’s legislative ban

on doctor assisted suicide (1997) Gonzalez v. Oregon

• U.S. Supreme Court upheld Oregon’s Death with Dignity Act

Washington Initiative (2008) voters enacted a death with dignity act modeled on Oregon’s law

*Assisted suicide is difficult to distinguish from first degree murder*But, rationales for condemning murder are not presented in doctor assisted suicide

-Doesn’t violate a person’s interest in continuing to live-Isn’t necessarily a destructive force in society*Opposing viewpoints are irreconcilable

Discussion Activity

Review the link below discussing 10 pros and cons to Doctor Assisted Suicides.Do you think Death by Dignity laws should be passed?

http://euthanasia.procon.org/view.resource.php?resourceID=000126