Chapter 10: HomicideCriminal LawSummer 2011

Murder(Mississippi Code)

§97-3-19. “Murder” & “Capital Murder” (1)The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:

(a) When done with deliberate design to effect the death of the person killed, or of any human being;

(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual

Felony Murder(Mississippi Code §97-3-19)

(c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual battery, unnatural intercourse with any child under the age of 12, or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection(2) of §97-5-39, or in any attempt to commit such felonies.

Manslaughter(Mississippi Code §97-3-35)

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

Watson v. U.S.1st Degree Murder

To prove meditation, government must show that a D gave: “thought before acting to the idea to take a human life and reached a definite decision to kill.”

No specific time must elapse between formation of design to kill and actual execution of the design.

Some appreciable time must elapse between formation of design to kill and actual execution of the design.

Reflection and consideration = deliberation

1st & 2nd Degree Murder

1st Degree Murder – calculated and planned killing

2nd degree murder – unplanned or impulsive

State v. Thompson1st Degree Murder

Passage of time is but one factor that can show that the D actually reflected.

Direct or circumstantial evidence must convince the jury beyond a reasonable doubt that the D actually reflected.

Premeditation = intended to kill and after forming that intent reflected before the killing.

People v. PayneIntentional v. Depraved

Indifference Murder Depraved Indifference Murder: Extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness.

Indifference to life contrasts with intent to take it.

Generalized depraved indifference contrasts with intentional killing directed at a single person.

Criminal liability for depraved indifference murder and intentional murder is generally the same.

NOT depraved indifference in this case.

People v. Payne Cont.

Examples of depraved indifference (heart) murder with no intent to kill (no intended victim)

Shooting in occupied house

Speeding on crowded sidewalk

Shooting into a crowd

Placing bomb in public place

Opening the lion’s cage in the zoo

People v. PayneCont.

Examples of conduct directed at a particular victim, without intent to kill, but with depraved indifference to the victim’s plight

Continuous beating on 3 year-old childRobbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road partially dressed, without shoes in subfreezing temperatures (People v. Kibbe)

Felony Murder

Common law – Person is guilty of murder if he kills another person during the commission or attempted commission of any felony

Modern Statute – Death that results from the commission of an enumerated felony (usually a dangerous felony) constitutes 1st degree murder for which the max penalty is death or life imprisonment.

This rule authorizes strict liability for death that results form commission of a felony

People v. Burroughs (1) look first to the primary element of the offense

at issue then (2) to the “factors elevating the offense to a felony,” (a) to determine whether the felony, taken in abstract, is inherently dangerous to human life, or (b) whether it possibly could be committed without creating such peril.

Underlying felony must be “inherently dangerous to human life” (Ds actions were not)

In this case, practicing medicine without a license is not inherently dangerous since one may commit the felony without endangering someone’s life.

People v. Wilson(Merger)

When the underlying felony is an “integral part” of the homicide, the application of the felony rule wouldn’t deter the offender from homicide.

E.g. Assault was the key part to the murder so it is pointless to apply the felony murder rule.

People v. Lowery

Felony Murder rule applies “where the intended victim of an underlying felony, as opposed to the D or his accomplice, fired the fatal shot which killed an innocent bystander.”

Jurisdiction follows the “proximate cause” theory of felony murder, rather than the “agency theory” (which renders the rule inapplicable to the killings done by the victim).

Proximate cause test = foreseeability.

People v. LoweryCont.

Proximate cause theory – liability attaches under the F-M rule for any death proximately resulting from the unlawful activity – not withstanding the fact that they killing was by one resisting the crime

Show causation through proximate cause then D would be liable despite shot being done by 3rd party

Agency theory – used in majority of jurisdictions; Doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the D or those associated with him in the unlawful enterprise. Thus the Felony-murder rule is inapplicable where the killing is done by one resisting the felony.

In this case the felony-murder doctrine applies b/c the D was considered the proximate cause due to the state.

Commonwealth v. Malone

Killing resulted by an act intentionally done by the D in reckless and wanton disregard of the consequences.

D guilty of 2nd degree murder (no intent)Gross negligence

Malice is evidenced by the intentional doing of an uncalled-for act in callous disregard of its harmful effects on others.

Intentional act to harm (means) that leads to unintentional result (death) = 2nd degree murder

State v. Gounagias

If the act of killing, though intentional, be committed under the influence of a sudden, intense anger, or heat of blood, obscuring the reason, produced by an adequate or reasonable provocation, and before sufficient time has elapsed for the blood to cool and reason to reassert itself, so that the killing is the result of temporary excitement rather than wickedness of heart or innate recklessness of disposition, then the law, recognizing the offense so committed as of less heinous character than premeditated or deliberate murder.

-Measured by the conduct of an “average man.”

Girouard v. State

Words spoken by the victim, no matter how abusive or taunting, are not sufficient to reduce murder to manslaughter.

Court reasoned: that it “cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter.”

Girouard v. State

Traditional circumstances that mitigate murder to manslaughter

Extreme assault or battery upon the D

Mutual combat

D’s illegal arrest

Injury or serious abuse of a close relative of D

Sudden discovery of a spouse’s adultery

People v. RocheMPC §210.3

Extreme emotional disturbance defense

Two Components:1. Acted under EED (mental infirmity typically manifested by loss of self-control) – circumstances of D’s conduct as perceived by D (subjective element), AND

2. Emotional disturbance supported by a reasonable explanation or excuse – D’s conduct reasonable as perceived by a reasonable person (objective element)

People v. Ashland“Cooling off”

“The law will not permit the D to deliberate upon his wrong and, avenging it by killing the wrongdoer, set up a plea that his act was committed in the heat of passion.”

The opportunity to “cool off” is a rigid bar to the defense.

In re FraleyRekindling

If in fact the D’s passion did cool, which may be shown by circumstances, such as the transaction of other business in the meantime, rational conversations upon other subjects, evidence of preparation for the killing etc., then the length of time is immaterial.

If the D’s passion did not cool yet if such time intervened between the provocation and the killing that the passion of the average person would have cooled, then there still is no reduction of the homicide to manslaughter.

State v. FloryRekindling

More than a day had passed since the D learned his father-in-law had raped D’s wife.

D was allowed to raise a provocation defense b/c the victim’s words re-kindled the passion that was aroused when D first heard of the attacks.

Crime of deceased was most heinous and was calculated to create a most violent passion in the mind of D, and it is hardly expected to subside within so short a time, especially when past facts clearly recalled.

People v. Patterson

An action influenced by an EED is not one that is necessarily so spontaneously undertaken.

Rather, it may be that a significant mental trauma has affected a D’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the forefront.

People v. Berry

General rule – words alone are not enough provocation

Court reversed and said it was enough provocation (contrary to traditional view)

Escalation

Cumulative effect of provocation

State v. Follin

No provocation defense

Killing of innocent bystander does not qualify as manslaughter, upon the assumption that a reasonable person would never be so greatly provoked as to strike out in blind anger at an innocent person.

Simpson v. U.S.

Court refused to give voluntary manslaughter instruction

Appellate court noted that under MPC the D might be entitled to have the jury consider “the despair and frustration” that he felt.

People v. BeiterNegligent Homicide

D’s conduct did not amount to criminal negligence – simply declaring that her conduct does not constitute gross deviation from the ordinary standard of care.

A person acts with criminal negligence with respect to a result or circumstance “when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Chapter 11Criminal LawSummer 2011TA Session

Scope

Larceny

Robbery

Burglary

Common Law Larceny

Six Elements of Larceny at Common Law: trespassory (unlawful) taking (caption – securing dominion over) and carrying away of the personal property of another with intent to steal it.

Taking occurs when the offender secures dominion over the property.

Carrying away requires some slight movement of the property

Larceny

Expanded focus on the intent element of the crime.

Intent to permanently deprive the owner of the property.

Larceny has also expanded to situations where an individual, possessing the requisite intent, exercised control over property inconsistent with the continued rights of the owner.

Larceny

Common law larceny – limited to the taking of tangible personal property (excluded deeds, checks, stocks, bonds, written instruments)

Sufficient for a taking if the offender exercises control or dominion.

Property must be “of another” which excludes such items as abandoned property and wild animals.

Larceny

Modern larceny statutes include both tangible and intangible property.

One must intend to deprive the owner of the possession of his property either permanently or for an unreasonable length of time, or intend to use it in such a way that the owner will be deprived of his property.

Requires both specified physical conduct and a specified state of mind.

D’s conduct and state of mind must coincide.

Larceny/Theft

The taking, transfer, or other disposition of another’s property without that person’s valid consent is prohibited by theft and related offenses.

In the MPC, 3 sections define the common means of effecting theft: (1) by unlawful taking or disposition, (2) by deception, and (3) by threat (extortion).

Larceny/Theft

A person is guilty of theft if he unlawfully takes or exercises unlawful control over, moveable property of another with purpose to deprive him thereof (MPC §223.2)

Requires the taking or control be “unlawful”

Requires a specific purpose to permanently deprive

This section applies on to “movable property”

People v. Olivo

Larceny in the context of shoplifting is an intent to exercise dominion and control over personal property that is inconsistent with the continued rights of the owner.

It does not matter that the D has not left the store with the property.

Robbery

Robbery consists of a trespassory taking and carrying away of the personal property of another with intent to steal the property form the person or presence of the other by means of force or putting in fear.

Robbery, a common law felony and today a statutory felony, regardless of the amount taken may be thought of as aggravated (forcible) larceny.

MPC Robbery§222.12

A person is guilty of robbery if, in the course of committing a theft, he:

A. Inflicts serious bodily injury upon another; or

B. Threatens another; or

C. Commits or threatens to commit

Robbery

Taking of personal property form the person or presence of another by force or threat of force.

Robbery requires an intent to permanently deprive.

Separate offense is carjacking (car robbery). Unlike larceny and robbery, it does not require an intent to permanently deprive.

BurglaryCommon law – breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony

Common definition of nighttime: when there is insufficient light to see a person’s face, except by artificial light or moonlight.

If intent was to commit a simple trespass, D was not guilty of burglary although he committed a felony after entering.

If the intent was to commit a felony, it made no difference that this purpose was not achieved.

Burglary does not require a taking of property, trespassing with the intent to steal suffices

Trespass – upon a piece of real property.

Burglary§221.1

MPC burglary is to enter a building or occupied structure with purpose to commit a crime therein, … It is an affirmative defense that the building or structure was abandoned.

Burglary is a felony in the 2nd degree if it is perpetrated in the dwelling of another at night.

MPC defines “night” as the period between 30 minutes past sunset and 30 minutes before sunrise.

BurglaryElement: Breaking

“actual” breaking – using force to open a door

Requires some use of force to gain entry, but minimal force is sufficient

Breaking must be to gain entry

“constructive” breaking – using fraud or threats

no physical force used

“obtaining admission to a dwelling-house at night, with the intent to commit a felony therein, by means of artifice or fraud upon a pretense of business or social intercourse (threat, fraud, or intimidation)

“Breaking” does NOT require anything to be physically broken by causing damage

Whether a breaking is actual or constructive it must happen contrary to the will of the occupier of the house.

BurglaryElement: Entering

Entering is defined as the entry of a building by a part of the body, or entry of a tool which was intended to consummate the felony

Common law – generally required that entry occurs as a consequence of the breaking

If a person walks into a home through a wide open door it isn’t “burglary”

Instrumentality rule – insertion of a tool or inanimate object into the structure is entry if it is entered for the purpose of accomplishing the felony. It is not sufficient if it was entered only to gain entry.

When a tool is used to break and steal, there has been a burglary

BurglaryElement: Dwelling

A dwelling can be any type of habitationHouse includes a temporarily unoccupied dwelling but not a building used only occasionally as a habitation

Temporary absence of those dwelling in a structure will not deprive it of its character as a dwelling.

It does not remain a dwelling after the last inhabitants have left if there is no intent to return, nor is it a dwelling before any inhabitants have moved in, even if it was built as a dwelling.

BurglaryElement: Of Another

A person cannot be convicted of burglarizing his own home, even if there is a felonious purpose, so long as there is no invasion of a possessory right to habitation

The requirement is that the structure be used as a dwelling by someone other than the D.

OCCUPANCY, rather than ownership is material.

A person who leases a home to another can be criminally liable for burglarizing that home.

BurglaryElement: During the

NightMPC – hours between half an hour after sunset and half an hour before sunrise

Common law – when there is insufficient light to see a persons face except by artificial light or moonlight

MS – Burglary element of nighttime was deleted.

BurglaryElement: With the

Intent..D must have intended to commit a felony at the time of entry

If the intent is formed after the entry has been accomplished, burglary is not committed