SEQ CHAPTER \h \r 1CR24-052 03/26/07

FIRST DEGREE FELONY MURDER (W/ ACCOMPLICE):  13 V.S.A. § 2301 + common law

The State has charged (Def)_______________ with first degree felony murder, as follows:

[Read the charge.]

Every crime is made up of essential elements.  Before (Def)_______________ can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt.  In this case, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________ committed the crime charged;

(2) (Def)_______________ or an accomplice caused the death of (victim)_______________;

(3) the killing was unlawful;

(4) the killing occurred during (Def)_______________’s participation in (charged felony)_______________; and

(5) at the time of (Def)_______________’s participation in the (charged felony)_______________, [he] [she] acted with an intent to kill, or an intent to do great bodily harm, or a wanton disregard of the likelihood that death or great bodily harm would result.

The first essential element is that (Def)_______________ is the person who committed the crime charged.

The second essential element is that (Def)_______________ or [his] [her] accomplice caused the death of (victim)_______________.

[Insert “accomplice liability” instruction CR09-301, either  here or earlier in the instructions.]

The State must have proven that (Def)_______________, or (accomplice)_______________, or both of them as part of a common plan involving the commission of a (charged felony)_______________, in fact caused the death of (victim)_______________.  The State must have proven, either that (Def)_______________ did the acts that caused the death of (victim)_______________, or that [he] [she] acted as an accomplice to the felony that brought about the killing, as I have already defined the term “accomplice.”

To cause (victim)_______________’s death means to produce it in a natural and continuous sequence, unbroken by any efficient intervening cause.  [An efficient intervening cause would be an unexpected, independent force that broke the connection between the acts of (Def)_______________ or (accomplice)_______________, and the death of (victim)_______________.] You must conclude that (victim)_______________’s life ended by means other than natural causes, accident, or suicide.  You must also conclude that, but for the acts of (Def)_______________ or (accomplice)_______________, (victim)_______________’s death would not have occurred.

Here the State alleges that (Def)_______________, or an accomplice, or both of them as part of a common plan, caused the death of (victim)_______________, by (specific acts)_______________.

The third essential element is that the killing was unlawful.  The term unlawful killing means that (victim)_______________ was killed without legal excuse or legal justification.  Legal excuse or justification ordinarily refers to such things as self-defense or legal necessity.  [A killing may be justified where a person acts in self-defense, or in defense of another, or in trying to stop another person attempting to commit certain violent felonies.  Here, the State must have proven that (Def)_______________ did not act in self-defense, or in defense of another, or in trying to stop another person attempting to commit (felony)_______________ with force or violence.]

The fourth essential element is that the killing occurred during (Def)_______________’s participation in (charged felony)_______________.  The essential elements of (charged felony)_______________ are that at the time and place alleged:

[Insert elements and instructions for the charged felony.]

In considering this fourth essential element of the charge of felony murder, you must consider whether there was a plan to commit (charged felony)_______________.  You must consider each individual’s actions, but your task is to determine whether (Def)_______________ is guilty or not guilty.  [He] [She] is entitled to have [his] [her] case decided on the evidence and the law that applies to [him] [her].  It is not enough merely to find that (Def)_______________ and (accomplice)_______________ agreed to commit the crime of (charged felony)_______________.  To find (Def)_______________ guilty as an accomplice to felony murder, the State must have proven that (Def)_______________ possessed both the intent to commit the (charged felony)_______________, and one of the three mental states required for felony murder. 

The last essential element is that, at or prior to the time of the killing, (Def)_______________ acted with (1) an intent to kill, or (2) an intent to do great bodily harm, or (3) a wanton disregard of the likelihood that death or great bodily harm would result.  As you consider (Def)_______________’s mental state at the time of the killing, you should consider all of the surrounding facts and circumstances, and you must decide whether the State has proven that (Def)_______________ acted with at least one of these three mental states.

A person acts intentionally if he or she acts purposely, and not inadvertently, because of mistake, or by accident.  You may find that (Def)_______________ acted intentionally if it was [his] [her] conscious objective to cause death or great bodily harm to (victim)_______________.

The term great bodily harm means bodily injury which involves a substantial risk of death, serious permanent disfigurement, or long-term loss or impairment of the function of any part of an organ of the body.

As used here, a wanton act is a reckless act done with extreme indifference to the probability that someone would die as a result.  It is more than extreme negligence.  The State must have proven that (Def)_______________ was actually aware of the risk of death or great bodily harm, and that [he] [she] ignored that risk.  In determining (Def)_______________’s state of mind, you should consider all of the facts and circumstances established by the evidence.

All of the elements of the offense must have been present at the same time.  If the State has not proven each of the essential elements of the charge beyond a reasonable doubt, then you must find (Def)_______________ not guilty.  However, if the State has proven all of the essential elements beyond a reasonable doubt, you must return a verdict of guilty.