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.