CR24-301 04/29/16

 

FIRST-DEGREE MURDER (WILFUL, DELIBERATE AND PREMEDITATED KILLING) (13 V.S.A. 2301 and Common Law), WITH TRANSITION CHARGES TO LESSER INCLUDED OFFENSES (in cases lacking evidence of sudden passion or great provocation)

 

 First-Degree Murder

The State has charged (Def)_______________ with first-degree 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 of first-degree murder are that on the date and at the place alleged,

(1)               (Def)_______________;

(2)               caused the death of (victim)_______________;

(3)               the killing was unlawful;

(4)               (Def)_______________s killing of (victim)_______________ was wilful;

(5)               [his] [her] killing of (victim)_______________ was deliberate; and

(6)               [his] [her] killing of (victim)_______________ was premeditated.

The first essential element is that (Def)_______________ is the person who committed the alleged acts.

The second essential element is that (Def)_______________ caused the death of (victim)_______________.  The State must have proven that (Def)_______________s acts produced (victim)_______________s death 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 (Def)_______________s acts and (victim)_______________s death.] You must conclude that (victim)_______________s life ended by means other than natural causes, accident, or suicide.  You must also conclude that, but for (Def)_______________s acts, (victim)_______________s death would not have occurred.

Here the State alleges that (Def)_______________ 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, fifth, and sixth essential elements require the State to have proven that (Def)_______________ acted with the required mental state or intent.  The intent with which a person acts may be shown by the way in which the person expresses it to others, or by his or her conduct.  In determining (Def)_______________s mental state or intent, you should consider all of the surrounding facts and circumstances established by the evidence.

The fourth essential element is that (Def)_______________s killing of (victim)_______________ was wilful.  A wilful act is one which is knowing and intentional.  You may find that the killing was wilful if (Def)_______________ killed (victim)_______________ on purpose, and not accidentally, carelessly or unintentionally.

The fifth essential element is that (Def)_______________s killing of (victim)_______________ was deliberate.  An act is deliberate if it is carefully considered.  (Def)_______________ must not have acted out of sudden impulse, but rather after deliberating for a period of time, however long or short.  Deliberation is the act of thinking about and considering the reasons for and against an act or course of conduct.  A person may think about a killing over a period of months or over a period of seconds; either period of time may be enough.  The issue is the extent and quality of the deliberation, not its duration.  Also, it is not enough to show that (Def)_______________ had enough time to deliberate.  The State must have proven that [he] [she] actually thought about killing (victim)_______________ before [he] [she] did it.

The last essential element is that (Def)_______________s killing of (victim)_______________ was premeditated.  A killing is premeditated if the actor thinks about it and plans it for some period of time before acting.  Premeditation differs from deliberation in that it involves planning how to do an act, in addition to thinking about whether or not to do it.  No specific amount of time is required.  As with deliberation, a person may plan a killing over a period of months or over a period of seconds; both may be premeditation.  The issue is the extent and quality of the premeditation, not its duration.  Again, it is not enough to show that there was enough time for premeditation.  The State must have proven that (Def)_______________ actually thought about killing (victim)_______________, and planned it, before [he] [she] did it.

All of the elements of the offense must have been present at the same time.  If the State has proven each of the essential elements of first-degree murder beyond a reasonable doubt, then you will be done with your deliberations, and you must return a verdict that (Def)_______________ is guilty of first-degree murder.

Transition

If you decide that the State has not proven each of the essential elements of first-degree murder, then you must consider whether (Def)_______________ is guilty of one of the lesser offenses; or, if you are unable to agree upon a verdict concerning the charge of first-degree murder, after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the lesser offenses. 

Lesser Included Offenses

In this case, the lesser included offenses to first-degree murder are second-degree murder and involuntary manslaughter. The first three elements for the lesser offenses are the same as the first three elements for first-degree murder, namely, the State must have proven (1) that (Def)_______________ (2) caused the death of (victim)_______________, and (3) that the killing was unlawful.  However, for the lesser offenses, the State need not have proven that the killing was wilful, deliberate, and premeditated.  The mental elements are different for each of the lesser offenses.

Second-Degree Murder

The first lesser offense for you to consider is second-degree murder.  If you reach the point of deciding whether or not the State has proven the lesser crime of second-degree murder, you must consider whether the State has proven the following essential elements beyond a reasonable doubt: that on the date alleged and at the place alleged:

(1)               (Def)_______________;

(2)               caused the death of (victim)_______________;

(3)               the killing was unlawful; and

(4)               in causing the death of (victim)_______________, (Def)_______________ 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 three essential elements are defined in the same way as they are defined for first-degree murder.

The last essential element of second-degree murder is that, in causing the death of (victim)_______________, (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 proven each of the essential elements of second-degree murder beyond a reasonable doubt, then you will be done with your deliberations, and you must return a verdict that (Def)_______________ is guilty of second-degree murder.

Transition

If you decide that the State has not proven each of the essential elements of second- degree murder, then you must consider whether (Def)_______________ is guilty of the lesser offense of involuntary manslaughter. Or, if you are unable to agree upon a verdict concerning the offense of second-degree murder after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the lesser offense of involuntary manslaughter.

Involuntary Manslaughter

Involuntary manslaughter is an unlawful killing of another human being, done with no intent to take human life.  It is an unintentional killing where the person acts with criminal negligence by failing to perceive the risk of death or serious bodily injury.

If you reach the point of deciding whether or not the State has proven the lesser charge of involuntary manslaughter, you must consider whether the State has proven the following essential elements beyond a reasonable doubt: that on the date alleged and at the place alleged:

(1)               (Def)_______________;

(2)               caused the death of (victim)_______________;

(3)               the killing was unlawful; and

(4)               in causing the death of (victim)_______________, (Def)_______________ acted with criminal negligence.

The first three essential elements are defined in the same way as I have already defined them for the other degrees of unlawful killing.

The last essential element of involuntary manslaughter is that, in causing the death of (victim)_______________, (Def)_______________ acted with criminal negligence.  Criminal negligence means something more than ordinary carelessness.  It means that (Def)_______________ disregarded a risk of death to such a degree that [his] [her] failure to perceive it, given the circumstances, involved a gross deviation from the standard of care that a reasonable person would have exercised in the same situation.  In determining (Def)_______________s state of mind, you should consider all of the surrounding 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 involuntary manslaughter 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.

Presumption of Innocence

When considering the degree of unlawful killing that might be involved in this case, the presumption of innocence plays two roles.  First, (Def)_______________ is presumed to be innocent of any crime.  Second, if you find beyond a reasonable doubt that (Def)_______________ committed an unlawful killing, then you must give [him] [her] the benefit of any reasonable doubt in deciding the degree of the offense.  In other words, you must apply the presumption of innocence, and weigh it against the evidence at each step of your deliberations.  Nevertheless, if all of the evidence, weighed along with the presumption of innocence, convinces you beyond a reasonable doubt that (Def)_______________ is guilty of one of the higher degrees the offense, then you must find [him] [her] guilty of the highest degree of the offense that has been proven beyond a reasonable doubt.

Verdict

Your verdict will be one of the four possible verdicts:

(1)               Not guilty of any crime;

(2)               Guilty of first-degree murder;

(3)               Guilty of second-degree murder; or

(4)               Guilty of involuntary manslaughter.