Chapter Nine

1. Chapter Nine Crimes Against Persons: Homicide Joel Samaha

2. 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.

3. 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 actusreus, mensrea; 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.

4. 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

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

6. 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?

7. 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

8. 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

9. 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

10. 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

11. Kinds and Degrees of Murder Most states divide homicide into two degrees, some divide it into three MPC doesn’t use degrees, divides murders according to mental attitudes • 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

12. 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

13. 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

14. 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 actusreus of first degree murder Mens Rea: Actus Reus:

15. 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

16. The Deadly Weapon Doctrine One who intentionally uses a deadly weapon on another human being and thereby kills him presumably intends to kill him

17. 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

18. 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

19. 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

20. 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.

21. Felony Murder 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 mensrea to commit the underlying felony • 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)

22. Discussion Activity Review 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?

23. 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)

24. 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)

25. 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.

26. 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 • Actusreus –killing • Mensrea –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

27. 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

28. 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.

29. 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

30. 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.)

31. 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

32. 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.”

33. 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

34. 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

35. 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

36. Constitutional Right to Doctor-Assisted Suicide • *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 • 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

37. 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