CR24-302 04/29/16

 

FIRST-DEGREE MURDER (WILFUL, DELIBERATE AND PREMEDITATED KILLING) (13 V.S.A. 2301 and Common Law) (in case with prima facie evidence of provocation), WITH TRANSITION CHARGES TO LESSER INCLUDED OFFENSES

 

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 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

The lesser included offenses to first-degree murder are second-degree murder, voluntary manslaughter, and involuntary manslaughter.  The first three elements for all of 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) the killing was unlawful.  However, for the lesser offenses, the State need not have proven that the killing was willful, deliberate, and premeditated.  The mental elements are different for each of the three lesser offenses.  As you consider the mental elements for the lesser offenses, you must also consider whether (Def)_______________s mental state was influenced by extenuating circumstances, such as sudden passion or great provocation, that would have caused a reasonable person to lose self-control.

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;

(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; and

(5)               when [he] [she] caused the death of (victim)_______________, (Def)_______________s mental state was not influenced by extenuating circumstances, such as sudden passion or great provocation, that would have caused a reasonable person to lose self control.

 The first three essential elements are defined in the same way as they are for first-degree murder.

The fourth 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 surrounding facts and circumstances established by the evidence.

The last essential element of second-degree murder is that, when [he] [she] caused the death of (victim)_______________, (Def)_______________s mental state was not influenced by extenuating circumstances, such as sudden passion or great provocation that would have caused a reasonable person to lose self-control.  Even if the State has proven the first four elements of second-degree murder, the presence of sudden passion or great provocation could mitigate the killing, without justifying it altogether.

Any person who is assaulted with violence, or with an act of extreme insult, may be provoked to a sudden impulse of anger which cannot be resisted until the person cools off. Words alone do not establish an act of extreme insult.  If this person attacks his or her assailant and causes death, the killing may be found to be the result of anger, or heat of passion.  A killing is voluntary manslaughter, and not second-degree murder, if (Def)_______________ was adequately provoked, did not have enough time to cool off and in fact did not cool off, and if [his] [her] inability to cool off within that time was reasonable under the circumstances.

As used in this charge, the term sudden passion refers to such passion as would cause a reasonable person, under the same or similar circumstances, to act rashly and without reflection and deliberation.  Sudden passion means that (Def)_______________ acted or reacted from emotion and not from reason.

Great provocation refers to a degree of provocation that would cause a reasonable person to lose self-control and to act without thinking.  A mere annoyance or irritation is not enough.  Words alone, no matter how offensive, insulting or abusive, are not enough to reasonably provoke the use of deadly force.

If there was sudden passion or great provocation, but enough time passed between the provocation and (Def)_______________s alleged acts to allow a reasonable person to cool off, then the acts cannot be said to have resulted from sudden passion or great provocation.

As the last essential element of second-degree murder, the State must have proven that, when (Def)_______________ committed the acts that killed (victim)_______________, [his] [her] state of mind was not influenced by sudden passion or great provocation that would have caused a reasonable person to lose self control.

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 one of the other lesser offenses; 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 other lesser offenses of voluntary manslaughter and involuntary manslaughter.

Voluntary Manslaughter

 Voluntary manslaughter is a lesser offense than second-degree murder.  It is an intentional, unlawful killing of another human being, committed under extenuating circumstances that mitigate, but do not justify the killing, such as sudden passion or great provocation that would cause a reasonable person to lose self-control.  A killing is voluntary manslaughter, as opposed to murder, if (Def)_______________ lost control because of the sudden passion or great provocation, if [he] [she] did not regain control before the alleged killing, and if a reasonable person in the same situation would not have regained control within that same time.

If you reach the point of deciding whether or not the State has proven the lesser charge of voluntary 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 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 and for second-degree murder.

The fourth and last element of voluntary manslaughter also contains the same three mental states that form the fourth element of second-degree murder.  The State must have proven 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.  You must apply the same definitions I have given to you, and you must decide whether the State has proven that (Def)_______________ acted with one or more of these three mental states.

At the same time, you may find that the degree of crime is reduced from second-degree murder to voluntary manslaughter, if (Def)_______________s mental state was influenced by sudden passion or great provocation. The State bears the burden of proof on this issue. If the State has proven the four elements that are the same for second-degree murder and for voluntary manslaughter, but if the State has not proven a lack of passion or provocation, then the State has proven voluntary manslaughter but not second-degree murder. In other words, the presence of sudden passion or great provocation can reduce the degree of crime from second-degree murder to voluntary manslaughter. However, if the State has proven the four essential elements of voluntary manslaughter, the presence of sudden passion or great provocation does not reduce the degree of crime below the level of voluntary manslaughter.

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 voluntary manslaughter beyond a reasonable doubt, then you will be done with your deliberations, and you must return a verdict that (Def)_______________ is guilty of voluntary manslaughter.

Transition

If you decide that the State has not proven each of the essential elements of voluntary manslaughter beyond a reasonable doubt, then you must consider whether (Def)_______________ is guilty of involuntary manslaughter; or, if you are unable to agree upon a verdict concerning the charge of voluntary manslaughter after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the 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, then 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 of unlawful killing, then you must find [him] [her] guilty of the highest degree of offense that has been proven beyond a reasonable doubt.

Verdict

Your verdict will be one of the five possible verdicts:

(1)               Not guilty of any crime;

(2)               Guilty of first degree murder;

(3)               Guilty of second degree murder;

(4)               Guilty of voluntary manslaughter; or

(5)               Guilty of involuntary manslaughter.