Have you or someone you care about been charged with murder, manslaughter, or another homicide-related offense? If so, you're in the right place.
North Carolina Attorney Bill Powers has been representing clients charged with murder and other homicide-related offenses his entire career. In this episode, Attorney Powers answers the questions that matter to you when you when you or a loved one is facing a murder or homicide offense.
That's why sometimes we see driving while impaired, or repetitive driving while impaired cases being charged with second degree murder, although it's not required. It's frankly a little bit scary to see how easy you can be charged in certain driving offenses where, I've seen case law where people turned off the lights, and they've gone on the wrong side of the road, and were driving at crazy speeds, and even though there's no alcohol involved you could technically be charged of second degree murder because the logical, and understandable, and foreseeable consequence is that you could kill somebody.
It's the mind that often times matters between the levels of homicide cases being murder versus voluntary manslaughter, versus involuntary manslaughter which may be that you did something exceptionally reckless or dangerous, but it wasn't to the extent that it fell within voluntary. Now, for example, this is where it gets really complicated, in a DWI related second degree murder or something of that nature, you have second degree murder, but then you're not eligible to argue as a lesser included that voluntary manslaughter.
You actually go from second degree murder down to involuntary manslaughter, or possibly I guess a felony death by a vehicle. It's very, very fact specific. We analyze these cases quite carefully based on that. And the cases that private counsel tend to see are the second degree murder and lower.
Robert Ingalls: Now with these heat of the moment, and your not preplanned killings, is there any time period that would turn that into first degree murder. Let's say the wife walks in, and then she goes back to her car, is there a specific period that would give her the ability to turn that into a planned killing?
Bill Powers: I have seen that before, where there's a period of escalation and deescalation, and duty to retreat, where there's an initial reaction, someone retreats, and they, because of the temporal aspect, the time, the reasonableness of you saying it was heat of passion, evaporates or dissipates. I have not seen on in a marital context. I've seen them in a case with neighbors, where there was a fight, and they started a fist fight. One of the neighbors got a weapon and cut somebody.
Then, even though that was a very serious offense in and of it itself, the person accused had an opportunity to retreat, and reengaged, and so yes, there are, if you've gotten away from the circumstances, then you can't just go back say, "Well, he did x, y, and z, and I'm going to get him back." That actually then does go to premeditation and deliberation where you're not defending yourself, or exercising your normal human reaction due to heat of passion.
Robert Ingalls: Gotcha. So if you were in a fight, left the fight, and came back, that completely changes it.
Bill Powers: Right. We also see this in circumstances where you're in a fight, and then someone brings a knife, and then you bring a gun, where it's not the same level of ... Now, I have seen cases where, and on a national level this makes sense. We've all seen these cases where, "I used a gun because he was on top of me, and it was the force reasonable, and necessary, and prudent for me to defend myself. I had to use that level of deadly force because otherwise I would have died." Think of the Treyvon Martin case down in, I think it was Florida if I remember correctly, where one person was on him and one person wasn't.
I'm not commenting on that verdict, I'm explaining why there are these different types of arguments, and that sometimes that's considered reasonable, and sometimes it's just not, that use of force.
Robert Ingalls: Well, and we talked about, during the assault episode, about the damage a fist can do.
Bill Powers: Right.
Robert Ingalls: If someone is on top of you, and they're relatively large, that fist could be the end of you.
Bill Powers: Right, or we see instances locally where maybe someone's doing more than using fists. Maybe they're smashing their head against a concrete sidewalk, or there's a weapon that ordinarily wouldn't be considered a deadly weapon, but something's happened, or it's been used in a way that it has become a deadly weapon, and you are literally facing death if you don't defend yourself and use that force necessary. By the way, these are pretty rare type of offenses.
When I was in college we used to refer to them as top of the layer cake, meaning that if you think of the number and frequency of criminal offenses as a wedding cake, the base of the wedding cake, the largest, would be lower level misdemeanors, they happen more frequently, and then maybe you have higher level misdemeanors, and then as you got up it gets more and more narrow, where the top of that cake is the smallest, are the very, very small number of these offenses that take place. They're salacious. They get a lot of media attention because of their infrequency, and to some extent their violence.
Most of the murder cases that we see in private practice are the alcohol related, or fights that have escalated, and occasionally we see them with the alleged drug deal that's gone bad, as if there's a drug deal that's gone good in the eyes of the law. But those are were, as a frequency, we tend to see, but this heat of passion, husband and wife thing, doesn't happen very often.
Robert Ingalls: One of the things I want to circle back to here before we move on is, you used the term a couple times, lesser included, a lesser included charge. What is that?
Bill Powers: Well, I'm trying to think of a good example of how to do this, if you think of you go to a cafeteria style meal, and you get a full plate and it's got the meat in three type of deals. If you get three sides it's more expensive than if you get one side. Lesser included in my mind, I think of it in a vertical type of scenario where you've got the highest level offense, and you take away an essential element or factual basis and it goes to a lower level offense. Let's use drugs as an example, 'cause it's an easy way to think about it.
There is trafficking of drugs, there's possession with intent to sell and deliver, there's simple possession felony, and then there may be a lower level misdemeanor. Now, in each instance you may have the lowest level added to the next level, added to the next level, and those add up to the highest level. Anything lower, or not exactly meeting all those points, or primae facia of aspects would be a lesser included offense.
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