Criminal Law - Outline - Part 5

7. Attendant circumstances

1. Homicide – Crime

1. Generally: justified homicides are not crimes
   1. Police, self-defense, etc.
   2. Only crime if it is unlawful
2. Common Law Homicide
   1. Murder → malice aforethought
   2. Manslaughter → no malice aforethought
3. Malice could be shown by:
   1. Intent to kill (conscious object)
   2. Intent to inflict serious bodily injury
      1. To feel pain
      2. Not intent to kill, but it’s possible in the course
   3. Depraved heart/extreme indifference
   4. Felony murder
4. Modern view
   1. Some states have strict common law view
      1. No degrees or categories
      2. Just murder or manslaughter
   2. Modern jurisdiction (federal and NC)
      1. Death caused by another human being without justification
      2. Choose between: (criminal homicide)
         1. Murder
            1. First degree
            2. Second degree
         2. Manslaughter
            1. Voluntary
            2. Involuntary
         3. Big difference is mens rea
   3. Federal Murder Statute: 1111(a):
      1. Definition of murder: unlawful killing of another human being with malice aforethought (common law)
         1. First-degree: poison, lying in wait, willful, deliberate, malicious, premeditated, committed during these things (felony murder), part of pattern, etc. (intent to inflict bodily harm), perpetuated.
         2. Second-degree: any other murder that isn’t first-degree: still need malice aforethought
      2. First-degree:
         1. Felony murder
         2. Intent to inflict serious bodily injury (to a child)
         3. Intent to kill (premeditation)
      3. Second-degree:
         1. Intent to inflict serious bodily injury (to an adult)
         2. Depraved heart/extreme indifference
5. 2nd Degree murder elements:
   1. Jurisdiction and venue
   2. Defendant (ID)
   3. Unlawfully
   4. With malice aforethought
   5. Caused the death of another
6. Malice required for 2nd degree:
   1. Intentional killings that don’t fit within the statutory definition of 1st degree
   2. Intent to cause serious bodily injury resulting in death
   3. Depraved heart/extreme indifference
7. United States v. Milton: Shooting from a car into another car. The victim dies and is charged and convicted of 2nd degree murder.
   1. Issue: whether there was sufficient evidence of malice aforethought
   2. Defendant argues he didn’t shoot with malice, so it is manslaughter
      1. Court rejects because it is depraved heart/extreme indifference: wanton and depraved spirit, a mind bent on evil mischief without regard for human life.
   3. Extreme recklessness: distinguish from regular recklessness by a matter of degree, but it is up to the court to decide
8. United States v. Houser: Defendant was a drunk and had a history of hitting the victim when he was drunk. On the night of the shooting he was in an argument with another guy outside the bar. Defendant walked over to his truck and got a gun out. He had words with the victim and then shot her in the neck.
   1. Defendant argues it was an accident and that there was a failure of actus reus because she caused the gun to go off during a struggle
   2. Government says he meant to shoot her, and the jury convicted of 2nd degree murder
   3. Since that theory lost the first time, he tried a new one on appeal
      1. Acknowledges he did it
      2. Improper instruction = “extreme disregard”
         1. Saying that it means people as a whole, not just her.
         2. Court says it doesn’t matter
   4. Rule: A jury can convict a defendant of 2nd degree murder under an extreme disregard theory even if the acts causing the victim’s death were reckless only toward the victim herself.
9. 2nd degree punishment
   1. Up to life in prison or whatever below that (judge has discretion)
   2. No capital punishment
10. 1st degree murder elements:
    1. Jurisdiction and venue
    2. Defendant (ID)
    3. Unlawfully
    4. Caused the death of another
    5. With malice aforethought
    6. With one of the following
       1. Premeditation
       2. BARRK (burglary, arson, rape, robbery, kidnapping)
       3. Assault and torture of a child
       4. During premeditated attempt to kill someone else
11. United States v. Thomas: Defendant shoots and kills his ex-girlfriend who he believed to have vandalized his current girlfriends place. He went to get a gun and left it at his girlfriend’s place. When they got back, his ex-girlfriend was taunting him, and he walked up to her and shot her with the gun he had retrieved before. Defendant was charged and convicted of 1st degree murder based on premeditation. This court affirmed.
    1. Rules of Premeditation: (ways to know)
       1. Result of planning or deliberation
       2. Time varies with circumstances
       3. Defendant consciously intends to kill (their goal)
    2. In this case:
       1. Got the gun, hid it and waited
       2. Walking towards her, he had time to think
       3. Got rid of weapon and went to his mom’s house to see her because he knew what was coming
       4. Multiple shots, deciding to pull the trigger repeatedly (can be spun both ways depending on timing of the shots)
    3. Good evidence of premeditation:
       1. Going to a second location to get the weapon
12. United States v. Shaw: Family was driving past a rest area and right as they got passed it a gunshot ripped through the backseat, killing one of their kids. Police found the vehicle they described seeing at the rest area and found the defendant in it with a hunting rifle.
    1. Defendant questions the sufficiency of the evidence
    2. Rules:
       1. Not a specific amount of time, but has to be some appreciable time for reflection and consideration
       2. Need to show time of deliberation during that time
       3. Not just reacting (heat of passion)
       4. “cold blooded killer”
    3. Defendant lies and makes up crazy story that ultimately hurts him and helps the prosecution
    4. Evidence of premeditation
       1. Circumstantial
       2. Pushed down area of leaves
       3. Fleas the scene
       4. Testimony of earlier passers saying he was pointing a gun down the highway
       5. Lying in wait
       6. Can look at the behavior of someone after the act to prove premeditation
13. United States v. Bell: Defendant stabs other inmate in his cell and he bleeds to death. Evidence: 70 seconds is time to deliberate, he has the object used to kill in his pocket when he goes into the cell of the victim, no evidence of a struggle (heat of passion), Dixon watches as if keeping watch, has time to deliberate before, even time between walking from his cell to the victim’s cell.
    1. Premeditation
       1. Reflection before acting
       2. How long?
          1. Can be short (no set time)
          2. “appreciable time” to reflect
       3. Not heat of passion
          1. Can be angry
          2. Was the anger so strong to overcome reason?
    2. Factors to consider
       1. Absence of provocation by deceased
       2. Conduct and statements of defendant before and after
       3. Threats before and after
       4. History of ill-will and bad blood
       5. Obtaining a weapon
       6. Evidence of motive
14. 1st degree: Felony Murder
    1. Common law doctrine we adopted
    2. If you intend to commit one felony and you do, and in the process, someone is killed, this is murder in the first degree
    3. What Felonies?
       1. BARRK (burglary, arson, rape, robbery, kidnapping)
    4. Why do we have it?
       1. Deterrence: careful felons
       2. Affirming human life value (best theory)
          1. Valuing human life in all aspects
       3. Eases burden of proof for prosecution
          1. Difficult to prove intent
    5. 18 U.S.C. 1111(a)
       1. Perpetuation
          1. Ongoing crime until person reaches a safe haven
          2. Pursuit is still during crime
       2. Perpetuation includes immediate attempt to escape
       3. Difference is time and distance between crime and death
    6. United States v. Garcia-Ortiz: The victim of a robbery kills one of the assailants. Defendant didn’t kill the co-conspirator directly, but the felony murder statute doesn’t require that the defendant pull the trigger.
       1. If you create the situation, you are responsible for the deaths that result regardless of who did the killing
       2. No regard to if the person who died was committing the felony
15. 2 approaches to the killing by Non-felon
    1. Proximate cause approach
       1. Garcia-Ortiz approach
       2. For any death proximately caused by the defendant’s commission of the underlying felony, regardless of who kills
    2. Agency approach
       1. Felony murder only if the killing is committed by the defendant or someone who is defendant’s co-felon
       2. Would give different result in Garcia
16. Connection between Felony and Death
    1. Act in furtherance of the felony → death
    2. U.S. v. Saba
       1. Couldn’t show death was connected to the kidnapping because no body was found
17. Quasi-felony murder statutes
    1. Type of crime resulting in death of any person…
    2. Examples:
       1. Drug dealing → death
       2. Alien smuggling → death
          1. U.S. v. Pineda-Doval: smuggling illegal aliens and evaded police when they tried to stop him. They threw out spike strips and he hit them causing the car to flip and kill 10 people inside his car.
             1. Statute says if someone dies while you are smuggling aliens you get a long sentence
             2. Not charged with murder
             3. Conduct was foreseeable, this had happened to him twice before.
18. Voluntary Manslaughter
    1. Intentional killing without malice
    2. “heat of passion” or “sudden quarrel”
       1. Typically, this is how you get to voluntary manslaughter
    3. Distinction between 1st degree murder and voluntary manslaughter (huge difference between sentences)
    4. Normal procedure:
       1. Government charges 1st degree
       2. Defendant claims heat of passion: voluntary manslaughter
    5. United States v. Quintero: Defendant’s daughter dies from blunt force trauma to the head. Defendant claims it was from a fall off of his pickup truck. History of beating the child. Defendant’s son testified that the defendant hurt her.
       1. He was acquitted of 1st degree by the trial judge, was acquitted of 2nd degree by the jury when they convicted of voluntary manslaughter, and the defendant appeals to try and get involuntary manslaughter.
       2. 1st degree murder, then lesser offenses:
          1. 2nd degree murder
          2. Voluntary manslaughter
          3. Involuntary manslaughter
       3. Every time they are charged with a higher crime, also charging with the lesser offenses
    6. Procedural Steps:
       1. Government charges with murder (usually 1st degree)
       2. Defendant claims he acted out of a heat of passion → voluntary manslaughter
       3. If the defendant brings evidence the judge will agree to instruct the jury on it
       4. Court agrees to instruct
          1. Has to be evidence in the record to point to, to get lesser offenses
       5. Government has to prove the absence of heat of passion (intentional killing)
    7. Heat of passion is essentially a defense the defendant raises
    8. Defendant cannot claim that the government failed to prove heat of passion because that is not their burden, their burden is to prove the absence of it. (Quintero)
19. Adequate Provocation/Heat of Passion
    1. Defendant killed the victim
    2. Defendant acted with mens rea that would otherwise constitute murder (usually intentionally)
       1. U.S. v. Serawop
    3. Defendant was adequately provoked into heat of passion
       1. Adequate: render an ordinary person (fair average disposition); what a reasonable person would have done during that event (did they have reason to be in that state of mind)
    4. No time to cool off
       1. “sudden” heat of passion
20. Adequate Provocation in Common Law
    1. 5 categories
       1. Aggravated assault or battery
       2. Mutual combat
       3. Commission of a serious crime against relative of defendant
       4. Illegal arrest
       5. Observation of spousal adultery (you have to witness it yourself)
    2. These remain ways to show, but they are not exclusive
21. Modern approach:
    1. No rigid categories
    2. Various factors and combinations could occur
    3. Exception:
       1. Words alone are not enough for adequate provocation unless stating a fact/allegation
       2. Calling someone a name is not enough
22. Involuntary Manslaughter
    1. An unintentional death
    2. Elements:
       1. Killing
       2. Another person
       3. During a misdemeanor, or
       4. During a lawful act without due caution, or
       5. A lawful act unlawfully
    3. (last two are criminal negligence or simple recklessness)
    4. United States v. Schmidt: Driving under the influence, swerved across the highway line and killed people. He was charged with involuntary manslaughter, but the argument for voluntary could be made.
       1. Criminal Negligence
          1. Gross deviation from the standard of care; more than just simple negligence
          2. Defined differently in different jurisdictions
             1. Regular recklessness and gross negligence
          3. Key = extent of risk to human life and extent of awareness by the defendant
23. Common Conundrums
    1. 1st degree murder or voluntary manslaughter
    2. 2nd degree murder or involuntary manslaughter (matter of degree)
       1. If someone dies during the commission of a crime → vandalism resulting in death is involuntary manslaughter