Murder

The unlawful killing of another human being without justification or excuse.

Murder is perhaps the single most serious criminal offense. Depending on the circumstances surrounding the killing, a person who is convicted of murder may be sentenced to many years in prison, a prison sentence with no possibility of PAROLE, or death.

The precise definition of murder varies from jurisdiction to jurisdiction. Under the COMMON LAW, or law made by courts, murder was the unlawful killing of a human being with malice aforethought. The term malice aforethought did not necessarily mean that the killer planned or premeditated on the killing, or that he or she felt malice toward the victim. Generally, malice aforethought referred to a level of intent or reck-lessness that separated murder from other killings and warranted stiffer punishment.

The definition of murder has evolved over several centuries. Under most modern statutes in the United States, murder comes in four varieties: (1) intentional murder; (2) a killing that resulted from the intent to do serious bodily injury; (3) a killing that resulted from a depraved heart or extreme recklessness; and (4) murder committed by an ACCOMPLICE during the commission of, attempt of, or flight from certain felonies.

Some jurisdictions still use the term malice aforethought to define intentional murder, but many have changed or elaborated on the term in order to describe more clearly a murderous state of mind. California has retained the malice aforethought definition of murder (Cal. Penal Code § 187 [West 1996]). It also maintains a statute that defines the term malice. Under section 188 of the California Penal Code, malice is divided into two types: express and implied. Express malice exists "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." Malice may be implied by a judge or jury "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

In Commonwealth v. LaCava, 783 N.E.2d 812 (Mass. 2003), the defendant, Thomas N. LaCava, was convicted of the deliberate, premeditated murder of his wife. LaCava admitted to the shooting and the killing, but he claimed that due to his diminished mental capacity, he could not form the requisite malice when he committed the killing, so as to be convicted of first degree murder. The Supreme Judicial Court of Massachusetts found that Massachusetts law permits psychiatric evidence to attack the premeditation aspect of murder. However, the judge's instructions to the jury regarding the definition of murder was sufficient to render the error harmless, according to the court.

Many states use the California definition of implied malice to describe an unintentional killing that is charged as murder because the defendant intended to do serious bodily injury, or acted with extreme recklessness. For example, if an aggressor punches a victim in the nose, intending only to injure the victim's face, the aggressor may be charged with murder if the victim dies from the blow. The infliction of serious bodily injury becomes the equivalent of an intent to kill when the victim dies. Although the aggressor in such a case did not have the express desire to kill the victim, he or she would not be charged with assault, but with murder. To understand why, it is helpful to consider the alternative: When a person dies at the hands of an aggressor, it does not sit well with the public conscience to preclude a murder charge simply because the aggressor intended only to do serious bodily injury.

Some murders involving extreme recklessness on the part of the defendant cause extreme public outrage. In People v. Dellinger, 783 P.2d 200 (Cal. 1989), the defendant, Leland Dellinger, was found guilty of the murder of his two-yearold stepdaughter. The primary cause of the child's death was a fractured skull caused by trauma to the head. However, other evidence showed that the child had large quantities of cocaine in her system when she died. Moreover, her mother discovered that the defendant had fed the child wine through a baby bottle. Due to the defendant's "wanton disregard for life," the verdict of murder was proper, according to the California Supreme Court.

A person who unintentionally causes the death of another person also may be charged with murder under the depraved-heart theory. Depraved-heart murder refers to a killing that results from gross negligence. For example, suppose that a man is practicing shooting his gun in his backyard, located in a suburban area. If the man accidentally shoots and kills someone, he can be charged with murder under the depraved-heart theory, if gross NEGLIGENCE is proven.

In Turner v. State, 796 So. 2d 998 (Miss. 2001), the defendant, Jimmy Ray Turner, was convicted of the murder of his wife. The couple had contemplated DIVORCE, but had apparently reconciled. After their reconciliation, they went together to the defendant's parents' house to return a borrowed shotgun. As they walked to the parents' house, the defendant, who testified that he did not think the shotgun was loaded, demonstrated to his wife how he carried the gun with his fingers on the trigger and walked with his arms swinging. His wife stopped suddenly, bumping into the defendant. The shotgun fired, killing the wife. Although the defendant was not charged with premeditated murder, he was indicted and convicted of depraved-heart murder due to his gross negligence in handling the shotgun.

Most states also have a felony murder statute. Under the felony murder doctrine, a person who attempts or commits a specified felony may be held responsible for a death caused by an accomplice in the commission of the felony; an attempt to commit the felony; or flight from the felony or attempted felony. For example, if two persons rob a bank and during the ROBBERY one of them shoots and kills a security guard, the perpetrator who did not pull the trigger nevertheless may be charged with murder.

The felonies that most commonly give rise to a felony murder charge are murder, rape, robbery, BURGLARY, KIDNAPPING, and ARSON. Many states add to this list. Maine, for example, adds gross sexual assault and escape from lawful custody (Me. Rev. Stat. Ann. tit. 17-A, § 202 [West 1996]). Generally, felony murder liability lies only if the death was a reasonably foreseeable consequence of the felony, a felony attempt, or flight from the crime. For example, courts have held that death is a reasonably foreseeable consequence of armed robbery.

Most states divide the crime of murder into first and second degrees. In such states, any intentional, unlawful killing done without justification or excuse is considered second-degree murder. The offense usually is punished with a long prison term or a prison term for life without the possibility of parole. Second-degree murder can be upgraded to first-degree murder, a more serious offense than second-degree murder, if the murder was accomplished with an aggravating or special circumstance. An aggravating or special circumstance is something that makes the crime especially heinous or somehow worthy of extra punishment.

California lists some 20 different special circumstances that can boost a murder from second to first degree, including murder carried out for financial gain; murder committed with an explosive; murder committed to avoid or prevent a lawful arrest; murder to perfect or attempt an escape from lawful custody; murder of a law enforcement officer, prosecutor, judge, or elected, appointed, or former government official; murder committed in an especially heinous, atrocious, or cruel fashion where the killer lay in wait for, or hid from, the victim; murder where the victim was tortured by the killer; murder where the killer used poison; or murder where the killing occurred during the commission of, aid of, or flight from certain felonies. These felonies include rape, robbery, kidnapping, burglary, arson, train wrecking, sodomy, the performance of a lewd or lascivious act upon a child under age 14, and oral copulation with a child under age 14 (Cal. Penal Code § 190.2 [West 1996]).

If a murder does not qualify by statute for first-degree murder, it is charged as second-degree murder. A second-degree murder may be downgraded to MANSLAUGHTER if mitigating factors were involved in the killing, such as adequate provocation by the victim, or the absence of intent or recklessness on the part of the defendant.

Maine has simplified the law of murder. In Maine, a person is guilty of murder if he or she intentionally or knowingly causes the death of another human being, engages in conduct that manifests a depraved indifference to the value of human life and causes death, or intentionally or knowingly causes another human being to commit suicide by the use of force, duress, or deception (Me. Stat. tit. 17-A § 201 [1996]). Maine also has a felony murder statute. It does not divide murder into degrees.

Sentencing for murder varies from state to state, and according to degrees in the states that have them. Second-degree murder usually is punished with more than 20 years in prison. A person convicted of second-degree murder in Minnesota, for example, may be sentenced to prison for not more than 40 years. Some states, such as California, allow a sentence up to life in prison for second-degree murder.

In some states that have a first-degree murder charge, the crime is punished with a life term in prison without the possibility of parole. In other states, first-degree murder is punishable by death. A defendant's criminal history may affect sentencing for a murder conviction. The greater the criminal history, the more time the defendant is likely to serve. The criminal history of a murder defendant may even cause a murder charge to be upgraded from second degree to first degree. In California, for example, a murder defendant who has a prior conviction for murder faces an automatic first-degree murder charge.

The strongest defenses to a murder charge are provocation and SELF-DEFENSE. If the defendant acted completely in self-defense, this fact may relieve the defendant of all criminal liability. If it does not relieve the defendant of all liability, self-defense at least may reduce the charge from murder to manslaughter. Provocation rarely results in complete absolution, but it may reduce the defendant's criminal liability. For example, suppose that a family is being tormented by a neighbor for no apparent reason. The neighbor has damaged the family's property, assaulted the children, and killed the family dog. If the father kills the neighbor and is charged with murder, the father may argue that the provocation by the victim was so great that if he is to be found criminally liable at all, he should be found liable for manslaughter, not murder.

A defendant's subjective belief that he or she was under attack by a victim at the time of a killing may be a basis for a claim of self-defense. In Henderson v. Texas, 906 S.W.2d 589 (Tex. App. 1995), the defendant, Sherri Henderson, was convicted of the murder of a victim whom she shot outside of a nightclub. The victim had engaged in a fight with the defendant's sister inside the club, and the fight later moved out-side. The defendant carried a gun that she had purchased a few days before, apparently for protection from her estranged husband. The facts in the case were in dispute, but the defendant found her sister bleeding from the head when she went to the parking lot. She claimed that she saw someone reach for a weapon, and she fired into a crowd, hitting and fatally wounding the woman who had fought her sister. The jury apparently believed the prosecution's claim that the defendant had intentionally shot at the victim after seeing her sister on the ground, and Henderson was convicted of murder. However, the Texas appellate court reversed the trial court's conviction, holding that evidence of the defendant's subjective beliefs regarding her attacker's identity and evidence of prior attacks on the defendant by her husband were relevant to her claim for self-defense.

Insanity is another defense to a murder charge. If a defendant was suffering from such a defect of the mind that he or she did not know what he or she was doing, or the defendent did not know that what he or she was doing was wrong, the defendant may be found not guilty by reason of insanity. In some states, the defendant may be found guilty but mentally ill. In either case, the result is the same: The defendant is confined to a mental institution instead of a prison.

The INSANITY DEFENSE has many critics, and it especially comes under fire when a defendant commits an atrocious killing. In 2001, the nation was shocked by the story about Andrea Yates, who drowned each of her five young children in a bathtub. The children's ages ranged from six months to seven years old at the time of the killings. Yates was estranged from her husband and contacted him shortly after the killings. She subsequently confessed to the crime but claimed the defense of insanity. Her counsel argued that because she suffered from schizophrenia, which had first surfaced several years earlier, she did not know the difference between right and wrong at the time of the killings. According to testimony, she had considered stabbing her first child shortly after his birth. The insanity defense failed, however, and Yates was convicted and sentenced to life in prison.

The modern law of murder is relatively static, but minor changes are occasionally proposed or implemented. Some legislatures have debated the idea of striking assisted suicide from murder statutes. Some have considered proposals making doctors liable for murder if they perform a third-trimester ABORTION. Many have made changes with respect to juveniles. Juveniles accused of murder used to be tried in juvenile courts, but in the 1980s and 1990s, legislatures passed laws to make juvenile murder defendants over the ages of 14 or 15 stand trial as adults. This change is significant because a juvenile defendant convicted in the juvenile justice system might go free upon reaching a certain age, such as 21. A juvenile defendant who is tried in adult court does not have such an opportunity and may be sentenced to prison for many years, or for life without parole. A juvenile may be put to death upon conviction for murder but only if he or she was age 16 or older at the time of the offense (Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 [1988]).