Contemporary Criminal Law: Concepts, Cases, and Controversies
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You Decide: Homicide and the Point at Which Life Begins
In 2004, Congress passed and President George W. Bush signed the Unborn Victims of Violence Act. This provides that whoever engages in conduct that violates certain provisions of the federal law and causes the death or bodily injury to “a child, who is in utero at the time the conduct takes place,” is guilty of a “separate offense.” An offense under this section does not require proof that the person engaging in the conduct had “knowledge or should have had knowledge” that the victim of the underlying offense was pregnant or that the defendant “intended to cause the death of, or bodily injury to the unborn child.” A child in utero under the act “means a member of the species homo sapiens, at any stage of development, who is carried in the womb.” The Act does not permit prosecution for conduct relating to an abortion or to medical treatment. This law is to be enforced in federal as well as military courts. Would you hold the terrorists who bombed the World Trade Center in New York responsible for killing the unborn children of pregnant women who were working in the buildings on September 11, 2001? Consider an individual who assassinates a Congresswoman and does not realize that she is pregnant. Should the attacker be held liable for the death of a fetus? See 18 USC § 1841. The California Supreme Court discussed the issue of whether a defendant could be held liable for “killing” “unknown fetal life” in People v. Taylor, 86 P.3d 881 (Cal. 2004).
The Unborn Victims of Violence Act of 2004. Criminal conduct that violates any of the provisions of the law and thereby causes the death of, or bodily injury to a child who is in utero at the time the conduct takes place, is criminally responsible under this law. The punishment is the same as the punishment imposed for the same injury or death to the unborn child’s mother. The term “unborn child” means a child in utero and the term “child in utero” means a “member of the species homo sapiens, at any stage of development who is carried in the womb.” An offense does not require proof that the assailant had knowledge or should have had knowledge that the victim was pregnant or that the defendant intended to cause of, or bodily injury to, the unborn child. An individual convicted under this strict liability section would face between ten and twenty years in prison.
The intentional killing or attempt to kill an unborn child shall be punished for intentionally killing or attempting to kill a human being. The death penalty shall not be imposed and the assailant, instead, shall be sentenced to life imprisonment. The law does not permit prosecution for conduct relating to an abortion undertaken with the consent of the mother.
The main opposition to the Protection of Unborn Children Act stemmed from the fact that the Act recognized the “legal rights” of an unborn child prior to viability (eg. six months after conception) and that this might be used to argue that abortion should be completely prohibited. There also are concerns about imposing criminal liability in the absence of criminal intent. Others point out that assailants should be held liable for the consequences of their criminal acts in order to deter assaults against woman.
You Decide: First Degree Murder
Mike Brock mentioned to Roy Townsend before a party at Brock’s house that Gerald Harkins had spread rumors about Brock’s sister. Townsend replied that “either you can deal with it or I can deal with it.” Brock suggested that the three of them go on a hunting trip during which he would confront Harkins. Brock later decided not to go on the trip and Townsend, Harkins, and Jack Jellison left the party in Brock’s truck to go hunting. They started to drive up a mountain road, but it was blocked by a mound of dirt. Harkins started to back down the hill when Jellison, who was sitting in the front seat, heard a gun shot from the rear of the truck. He turned to see that Townsend had fallen out of the truck. Townsend asked whether “are you guys okay?” Jellison then saw that Harkins was slumped over the wheel and exclaimed, “oh my . . . you shot him. What . . . are you doing?” Townsend claimed that it was an accident and asked whether Harkins was still alive. Jellison noticed that Harkins was breathing and that his eyes were open. Townsend insisted that they could not take Harkins to the hospital because know one would believe that it was an accident given their prior criminal histories. Townsend then approached the driver’s side of the truck, looked inside and pointed the gun at Harkins head. Townsend said “God forgive me” and pulled the trigger. Townsend moved Harkins body to the passenger’s seat and Jellison drove the truck down the hill where they dumped the body in the woods. Townsend and Jellison later told Harkins’ roommate, Mike Drury, that Harkins had been accidentally shot. Townsend later burned the truck and took the gun to his home. The Washington Supreme Court defined premeditation as “the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.” Is Townsend guilty of deliberate and premeditated murder? See State v. Townsend, 15 P.3d 145 (Wash. 2001).
State v. Townsend, 15 P.2d 145 (Wash. 2001). A charge of first degree murder requires the State to prove premeditation for "more than a moment in point of time, but mere opportunity to deliberate is not sufficient to support a finding of premeditation." Premeditationis "the deliberate formation of and reflection upon the intent to take a human life" and involves "the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short." In testing the sufficiency of evidence, the court examines whether, after viewing the evidence and all reasonable inferences therefrom in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Premeditation may be proved by circumstantial evidence where the inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict is substantial. The testimony of Brock and Jellison, together with the forensic evidence, presented sufficient evidence of premeditated killing. At Brock's party, Townsend offered to "deal with" or "take care of" the problem Brock was having with Harkins. Townsend procured a gun and took it into the woods with Harkins and Jellison. Although Townsend claimed that the first shot was accidental, it caused a grazing scalp wound that would not have been fatal if treated; Harkins was still breathing. But Townsend did not take Harkins to the hospital. Instead, while asking for religious forgiveness, Townsend shot Harkins in the head at close range, killing Harkins instantaneously. This second, fatal shot was clearly premeditated.
You Decide: Aggravated Capital Murder
Richard Lynch was charged with murder that was heinous, atrocious, or cruel. Lynch armed himself with three firearms and went to the home of Roseanna Morgan, with whom he had an ongoing romantic affair. While waiting for Morgan to arrive home, he held Morgan’s thirteen-year-old daughter, Leah Caday as a hostage at gunpoint for thirty or forty minutes. As Morgan entered the apartment, Lynch shot her in the leg, pulled her into the apartment and then five minutes later killed her with three shots. After waiting five or seven minutes, Lynch shot Leah. Following her mother’s killing, Leah was heard to be screaming and Lynch described Leah as “petrified” when talking to a police negotiator. Was Leah killed in a heinous, atrocious, or cruel murder? Was Roseanna killed in a cold, calculated, and premeditated manner? See Lynch v. State, 841 So.2d 362 (Fla. 2003).
Lynch v. State, 841 So.2d 362 (Fla. 2003). The Florida Supreme Court has consistently held that "fear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel." Moreover, "the HAC aggravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death." In determining whether the HAC factor was present, the focus should be upon the victim's perceptions of the circumstances as opposed to those of the perpetrator.
An examination of the evidence, along with the natural and proper common-sense inferences, establishes that Caday suffered enormous fear, emotional strain, and terror immediately prior to her death. The appellant admitted terrorizing this thirteen-year-old child by holding her hostage at gunpoint prior to shooting her mother and then turning the weapon on her. The appellant himself admitted to the 911 operator, whom he called following the shootings, and to the police in his post-arrest interview, that he held Caday at gunpoint in her home for thirty to forty minutes waiting for Morgan to arrive. Lynch told the 911 operator that "the daughter was just terrified. She says why are you doing this to me." When he spoke to the police negotiator prior to his arrest, Lynch used the term "petrified" to define Caday's emotion at the time of the incident. In his post-arrest interview, Lynch admitted having his firearm in his hand when he told Caday to sit down inside the apartment. Lynch himself said, "she was afraid." When asked whether he was holding Caday hostage, Lynch replied, "I guess technically in a way of speaking . . . ." The appellant's wife confirmed that when the appellant called her during the time he was holding Caday hostage "there was a lady in the background screaming." Appellant's wife further testified that the screaming woman sounded "very, very upset." Clearly, Caday was terrified during the thirty to forty minutes prior to her death when she was being held hostage by Lynch.
Also significant in this analysis are the events immediately preceding Caday's death after her mother arrived at the apartment. Lynch admitted to the police negotiator that after holding Caday hostage for thirty to forty minutes that Morgan arrived at the apartment. Lynch confronted Morgan, shot her in the leg and then dragged her into the apartment. He admitted to the same to the 911 operator: "She had a couple of body hits. . . . I dragged her back inside so I could talk to her." In his post-arrest interview, Lynch admitted shooting Morgan several times in front of her daughter, Caday. Here, the evidence unquestionably supports the conclusion that the thirteen-year-old Caday feared for her own life while being held at gunpoint for thirty to forty minutes, and after witnessing her own mother being shot numerous times, surely experienced terror at the thought of her own impending death.
Lynch was totally indifferent to the suffering he caused Caday. The child undoubtedly witnessed her mother being shot several times. At any time during the thirty to forty minutes that he held her hostage at gunpoint, Lynch could have released the child. He had complete disregard for her terror and suffering, and only heightened it by shooting her mother numerous times in her presence. The totality of the circumstances proves Caday suffered extreme fear and emotional strain just prior to her death, and also must have feared for her own life. Under these facts alone, the trial court properly found HAC.
The evidence, along with the natural and proper common-sense inferences, establishes that Caday suffered fear, emotional strain, and terror during the events leading up to her murder, and thus HAC was appropriately found. There was utter indifference and total disregard for the suffering inflicted under these circumstances.
The trial court also properly applied the aggravating factor of CCP to the appellant's murder of Roseanna Morgan. The Court has established a four-part test to determine whether the CCP aggravating factor is justified: (1) the killing must have been the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); and (2) the defendant must have had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and (3) the defendant must have exhibited heightened premeditation (premeditated); and (4) there must have been no pretense of moral or legal justification. Execution-style killing is by its very nature a "cold" crime.
Lynch's killing of Morgan evinced the element of "cold" necessary for a finding of CCP. Lynch himself admitted to the 911 operator, the police negotiator, and the police in his post-arrest interview, that he shot Morgan in the back of the head, killing her. Having already been shot at least four times prior to a final shot to the head, and knowing that her daughter was still in the apartment, Morgan did not offer any resistance or provocation. Further, witnesses reported a five- to seven-minute delay between the initial shots and the final three after Morgan had been wounded in the initial confrontation. During this time, Lynch had the opportunity to withdraw or seek help for Morgan by calling 911; instead he calculated to shoot her again, execution-style. Despite Lynch's subsequent attempted self-serving rationalization that he only wanted to put her out of her misery, the appellant's execution-style murder of Morgan clearly satisfies the "cold" element of CCP.
As to the "calculated" element of CCP, the Court has held that where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of "calculated" is supported. Here, Lynch possessed three handguns as he traveled to Morgan's apartment where, after shooting her at least four times near the entrance, he then waited approximately five to seven minutes before shooting her again in the back of the head, execution-style. Lynch clearly had time to reflect upon these events before firing the final shots; in fact he purposely used a different weapon to shoot her in the head than he had used to inflict the initial wounds. The third element, "heightened premeditation," is also supported by competent and substantial evidence. This Court has "previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder." Similarly, Lynch had the opportunity to leave the crime scene and not kill Roseanna Morgan. As in Dennis, Lynch arrived at Morgan's apartment and waited for thirty to forty minutes for her to arrive. During this time, regardless of what his intentions may have been prior to Morgan's arrival, Lynch had ample opportunity to leave the scene. Further, after initially shooting Morgan and then dragging her into the apartment, Lynch had five to seven minutes in which he could have left the scene and not inflict the final harm. Despite this time to reflect, Lynch chose to shoot Morgan in the head, execution-style, killing her. The evidence of Lynch's actions competently and substantially supports "heightened premeditation." The final element of CCP is a lack of legal or moral justification. "A pretense of legal or moral justification is 'any colorable claim based at least partly on uncontroverted and believable factual evidence or testimony that, but for its incompleteness, would constitute an excuse, justification, or defense as to the homicide.'" Defendant's attempted justifications for the murder based on Morgan's alleged rejection of him as a lover and her refusal to fully pay a credit card debt are completely without merit or support, and are therefore rejected (text taken directly from judgment of the court ).
You Decide: Capital Murder
Eighteen-year-old Richard Henyard stole a pistol from a family friend. On January 29, 1993, Henyard told a friend that he planned to go to a nightclub in Orlando and to visit his father in South Florida. While displaying the gun, he confided to his friend that in order to make the trip, he planned to steal a car and to kill the owner. Henyard persuaded a fourteen-year-old friend, Alfonza Smalls, to participate in a robbery. The two young men followed Ms. Lewis as she left the grocery store and watched as she put her daughters, Jasmine, age three, and Jamilya, age seven, into her automobile. Smalls pulled up his shirt to reveal a gun and ordered Ms. Lewis and her daughters into the front seat.
Smalls told Ms. Lewis to “shut the girls up” and when Lewis cried out to Jesus for help, Henyard responded that “this ain’t Jesus, this is Satan.” Henyard subsequently stopped the car, ordered Ms. Lewis out of the car and raped Ms. Lewis on the trunk of the car while her daughters remained in the back seat. Smalls also raped Ms. Lewis on the trunk of the car. Henyard directed Lewis to sit on the edge of the road and when she hesitated he pushed her to the ground and shot her in the leg. Henyard subsequently shot Lewis three more times, wounding her in the neck, mouth, and the middle of the forehead between her eyes. Henyard and Smalls pushed Ms. Lewis’s unconscious body off to the side of the road. Lewis subsequently regained consciousness and was able to alert the police. Henyard and Smalls then reentered the auto and drove away as Jasmine and Jamilya continued to cry and plead for their mother. Henyard stopped the car and led the two young girls to a grassy area where “they were each killed by a single bullet fired into the head. Henyard and Smalls threw the bodies of Jasmine and Jamilya Lewis over a nearby fence into some underbrush.” The autopsies of Jasmine and Jamilya Lewis indicated that they both died of gunshot wounds to the head at very close range. The forensic evidence indicated that Jasmine’s eye was open when she was shot. Henyard claimed that the heinous, atrocious, and cruel aggravating circumstance was not applicable because he had killed the two girls with a single shot and that they had not been physically harmed prior to their murder. What is your view? See Henyard v. State, 689 So. 2d 239 (Fla. 1996).
Henyard v. State, 689 So.2d 239 (Fla. 1996).
Henyard claims that the trial court erred in finding the pecuniary gain aggravating circumstance in this case because the evidence was insufficient to prove this aggravating factor beyond a reasonable doubt. In Hardwick v. State, 521 So. 2d 1071, 1076 (Fla.), we held that in order for the pecuniary gain aggravating factor to be present, there must be proof beyond a reasonable doubt that the murder was an "integral step in obtaining some sought-after specific gain."
Here, the trial court found that, during the week preceding the murders, Henyard "stated he was going to get himself a car," and "foretold or bragged on Friday evening[,] January 29, 1993 that he would steal someone's car, kill the owner and use the car to drive to Pahokee to see his father." The following evening, Henyard and his codefendant stole Ms. Lewis's car and abducted the Lewis family, raped and attempted to murder Ms. Lewis, and killed her children, Jasmine and Jamilya Lewis. Henyard's admissions and the facts of this case support a finding that the murders of Jasmine and Jamilya Lewis were "an integral step in obtaining some sought after specific gain." Thus, the trial court did not err in finding the pecuniary gain aggravating factor to be proved beyond a reasonable doubt in this case.
Second, Henyard contends that the trial court erred in finding the heinous, atrocious, or cruel aggravating circumstance in this case because each child was killed with a single gunshot, and "if the victims were adults, heinous, atrocious, [or] cruel would not be present on this record." We disagree. We have previously upheld the application of the heinous, atrocious, or cruel aggravating factor based, in part, upon the intentional infliction of substantial mental anguish upon the victim. Moreover, "fear and emotional strain may be considered as contributing to the heinous nature of the murder, even where the victim's death was almost instantaneous." In this case, the trial court found the heinous, atrocious or cruel aggravating factor to be present based upon the entire sequence of events, including the fear and emotional trauma the children suffered during the episode culminating in their deaths and, contrary to Henyard's assertion, not merely because they were young children. Thus, we find the trial court properly found that the heinous, atrocious, or cruel aggravating factor was proved beyond a reasonable doubt in this case.
As his final claim, Henyard argues that his death sentences are disproportionate to the sentence received by his codefendant, Alfonza Smalls, and that the mitigating factors in his case outweigh the aggravating factors. Under Florida law, when a codefendant is equally culpable or more culpable than the defendant, disparate treatment of the codefendant may render the defendant's punishment disproportionate. Thus, an equally or more culpable codefendant's sentence is relevant to a proportionality analysis. Like Henyard, Alfonza Smalls was tried on the same charges and convicted, but he was not subject to the death penalty because his age of fourteen at the time of the offense prevented him from receiving the death penalty as a matter of law. Rather, Smalls received the maximum sentence possible for his crimes-eight consecutive life sentences, with a fifty-year mandatory minimum for the two first-degree murder convictions.
In Allen v. State, 636 So. 2d 494, 497 (Fla. 1994), we held that the death penalty is either cruel or unusual punishment under article I, section 17 of the Florida Constitution if imposed upon a person who is under the age of sixteen when committing the crime. That is, when a defendant is under the age of sixteen, his or her youth is such a substantial mitigating factor that it cannot be outweighed by any set of aggravating circumstances as a matter of law. In this context, then, Smalls' less severe sentence is irrelevant to Henyard's proportionality review because, pursuant to Allen, the aggravation and mitigation in their cases are per se incomparable. Under the law, death was never a valid punishment option for Smalls, and Henyard's death sentences are not disproportionate to the sentence received by his codefendant. . . . Finally, upon consideration of all of the circumstances, we further conclude that Henyard's death sentences are not disproportionate to death sentences imposed in other cases.
You Decide: Second Degree Murder
Defendant Harold Wayne Taylor and Patty Fansler lived together for several months along with Fansler’s three children. In July 1998, Taylor moved out, but told friends that he wanted to get back with Fansler and that if he could not have her “nobody else could.” The two were together on New Year’s Day, January 1, 1999. The police answered a call to a hotel room and Fansler alleged that the defendant had raped her. Taylor began stalking Fansler and she was forced to change her shift at work. On several occasions, he tailgated her. On March 1999, Taylor entered Fansler’s apartment and assaulted and killed her with a single gunshot to the head. Fansler also suffered a laceration on the back of her head that penetrated her skull and chipped the bone and also experienced bruises on her neck, legs, and elbow. The defendant was convicted of the first-degree murder of Fansler and of the second-degree murder of a fetus. The fetus was between eleven and thirteen weeks old. Fansler’s pregnancy was not apparent and Taylor did not know that Fansler was pregnant. Would you hold Taylor liable for the first-degree murder of Fansler and the second-degree murder of the fetus? Would Taylor be legally liable in the event that a stray bullet killed one of Fansler’s two sons? See People v. Taylor, 86 P.3d 881 (Cal. 2004).
People v. Taylor, 86 P.3d 881 (Cal. 2004). "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." [V]iability is not an element of fetal homicide under section 187, subdivision (a)," but the state must demonstrate "that the fetus has progressed beyond the embryonic stage of seven to eight weeks." Malice may be either express or implied. It is express when the defendant manifests a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. For convenience, we shall refer to this mental state as 'conscious disregard for life.’ [I]mplied malice has both a physical and a mental component, the physical component being the performance of an act, the natural consequences of which are dangerous to life, and the mental component being the requirement that the defendant knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.
"Recklessness need not be cognizant of the identity of a victim or even of his existence." When a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice towards those he ends up killing. There is no requirement the defendant specifically know of the existence of each victim.
In battering and shooting Fansler, defendant acted with knowledge of the danger to and conscious disregard for life in general. That is all that is required for implied malice murder.
A gunman who simply walked down the hall of an apartment building and fired through the closed doors, he would be liable for the murder of all the victims struck by his bullets—including a fetus of one of his anonymous victims who happened to be pregnant. Likewise, defense counsel conceded that the defendant would be guilty of implied malice murder if one of his bullets had struck an infant concealed by the bedcovers. On this point, both counsel are right. Had one of Fansler's other children died during defendant's assault, there would be no inquiry into whether defendant knew the child was present for implied malice murder liability to attach. Similarly, there is no principled basis on which to require defendant to know Fansler was pregnant to justify an implied malice murder conviction as to her fetus.
In battering and shooting Fansler, defendant acted with knowledge of the danger to and conscious disregard for life in general. That is all that is required for implied malice murder. He did not need to be specifically aware how many potential victims his conscious disregard for life endangered. The language of section 187, subdivision (a), that "[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought," is clear, making resort to its legislative history unnecessary. (text taken directly from judgment of the court) .
You Decide: Second Degree Murder
Kenith Wayne Sherrill appealed his murder conviction on the grounds that the evidence did not support his conviction for the premeditated first-degree murder of his girlfriend, Teressa. Kenith and Teressa Hilton had lived together for roughly three years. On the evening of July 6, 2004, Kenith’s son found Teressa, “her face ‘all black and blue,’ lying on the floor in the back of [her] trailer.” The police and paramedics were unable to revive Teressa. Kenith reportedly smelled of alcohol and explained that they had been drinking, gotten into a fight, and that Teressa had “spaced out” and stopped breathing. An autopsy revealed roughly forty-two “separate blunt impact injuries.” Teressa suffered internal injuries to her brain and abdominal areas, several fractured ribs, a lacerated liver, and significant internal bleeding in her chest area. Kenith argued that there was no indication that the injuries had been inflicted through the use of a dangerous weapon and that the Washington Supreme Court had held that physical force (strangulation) alone is insufficient to support a finding of premeditation “where no evidence was presented of deliberation or reflection before or during the strangulation.” However, the prosecution pointed out that manual strangulation involves a single continuous act and the multiple attacks in this incident stretched out over several hours. The premeditated nature of Kenith’s attack was supported by a history of domestic violence. In 2003, Teressa was taken to the emergency room for treatment after being beaten unconscious and in 2004, Kenith was arrested for fighting with Teressa. A close friend of Teressa testified that Teressa “had bruises on her body and face, and bald spots on her head where Mr. Sherrill ripped her hair out. . . . On one occasion, Teressa’s nose was nearly torn off.” The evidence indicated that “blood spatter was found in the kitchen, bathroom, living room, and outside on the step and wheels of the trailer. The appliances and carpet had blood on them. Blood and hair was found on a VCR and television receiver as well as on a step outside the door.” The defense argued that an inference of premeditation ordinarily required the use of a weapon and evidence of a fatal blow or fatal blows. The absence of a weapon was significant because both Kenith and Teressa were slight of stature and Kenith could not have physically overwhelmed Teressa. The evidence indicated that Teressa suffered three traumatic injuries (brain, chest, liver), none of which were individually fatal, that occurred over some time and took place in a number of rooms while the victim was both standing up and lying on the ground. Was Kenith guilty of first-degree murder or second-degree murder? See State v. Sherrill, 186 P.3d 1157 (Wash. Ct. App. 2008).
State v. Sherrill, 186 P.3d 1157 (Wash.App. 2008).
Mr. Sherrill argues on appeal that there is insufficient evidence of premeditation. He argued at trial that the evidence was insufficient to submit premeditation to the jury.
The jury was instructed that
[t]o convict the defendant of the crime of First Degree Murder, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about July 6, 2004, the defendant struck Teressa Lynn Hilton[;]
(2) That the defendant acted with intent to cause the death of Teressa Lynn Hilton;
(3) That the intent to cause the death was premeditated;
(4) That Teressa Lynn Hilton died as a result of defendant's act; and
(5) That the acts occurred in the State of Washington.
The jury was also instructed on premeditation:
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
Premeditation is “the deliberate formation of and reflection upon the intent to take a human life.” State v. Hoffman, 804 P.2d 577 (1991). Premeditation may be shown by circumstantial evidence where the jury's inferences are reasonable and substantial evidence supports the jury's verdict. Where the sufficiency of the evidence has been challenged with respect to the element of premeditation, Washington cases hold that a wide range of factors can support an inference of premeditation. Motive, procurement of a weapon, stealth, and method of killing are “particularly relevant” factors in establishing premeditation. Here, no evidence of motive, procurement of a weapon, or stealth was presented. Accordingly, Mr. Sherrill argues that the evidence was insufficient to establish premeditation. We disagree.
In State v. Allen, 147 P.3d 581 (2006), the defendant also asserted insufficient evidence of premeditation arguing that “he never expressed a preconceived intent to kill, he did not take weapons to his mother's home, and he himself was shocked at how their heated argument escalated into violence.” The court disagreed, noting that “a physical struggle over ‘an appreciable period of time’ prior to strangulation is sufficient evidence of premeditation.” In Allen, the altercation with his mother went from the kitchen to the bedroom and involved pushing and wrestling before escalating to strangulation.
Here, the high and low blood spatter evidence showed that Ms. Hilton was attacked while she was on the ground and while standing up. Blood on the ground and clumps of traumatically-removed hair also showed that the attack occurred inside and outside the motor home. Witness testimony suggested that the fighting began in the early evening and continued for several hours.
Blood spatter was found in the kitchen, bathroom, living room, and outside on the step and wheels of the trailer. The appliances and carpet had blood on them. Blood and imbedded hair was found on a VCR and television receiver as well as on a step outside the door.
In cases of premeditated intent to cause death, the cause of death is a significant factor. Here, there were at least 42 separate blunt impact injuries on Ms. Hilton's body. She sustained injuries to her head, abdomen, and also had fractured ribs and a lacerated liver. Forensic pathologist Dr. Gina Fino answered “yes” when asked if the head injury was “in and of itself a life threatening situation.” The rib fractures resulted in the collection of a “moderate” amount of internal bleeding in the chest cavity. Dr. Fino again answered “yes” when asked if the rib fractures and bleeding were “something that in and of itself would be life threatening to a person.” The laceration to the liver was, in and of itself, potentially a life-threatening injury.
Dr. Fino could not determine how long Ms. Hilton was conscious after she sustained the injuries and before she died. Dr. Fino estimated it could have been from 15 minutes to one hour or several hours. Dr. Fino stated that due to the injuries to Ms. Hilton's hands, Ms. Hilton was conscious for some of the attack. Dr. Fino concluded that the cause of death was multiple internal injuries due to blunt impact to the head, chest, and abdomen.
Mr. Sherrill argues that State v. Bingham, 719 P.2d 109 (1986) is applicable to the facts here. In Bingham, the court held that manual strangulation alone is insufficient evidence to support a finding of premeditation where no evidence was presented of deliberation or reflection before or during the strangulation. But manual strangulation involves one continuous act. Here, there were multiple attacks over several hours. While multiple wounds and sustained violence, standing alone, are insufficient to support an inference of premeditation; other evidence, combined with multiple wounds and sustained violence, does support an inference of deliberation and reflection. Evidence including prior threats or quarrels and defensive wounds on the victim will support an inference of premeditation. See State v. Millante, 908 P.2d 374 (1995). Here, a lengthy history of violence and fighting existed. And there were defensive wounds on Ms. Hilton.
In 2003, Ms. Hilton was taken to an emergency room for treatment after Mr. Sherrill beat her unconscious. In 2004, Mr. Sherrill was arrested after a passerby saw Mr. Sherrill attempting to restrain Ms. Hilton in his car as she attempted to get out. Ms. Darden testified that Ms. Hilton often called her to pick her up when she and Mr. Sherrill fought. Ms. Darden noted that Ms. Hilton had bruises on her body and face, and bald spots on her head where Mr. Sherrill ripped her hair out. Two days before the attack causing Ms. Hilton's death, Ms. Darden saw scratches and bruises on Ms. Hilton's face. On one occasion, Ms. Hilton's nose was nearly torn off.
Here, Ms. Hilton was attacked as she was on the ground, standing up, inside and outside the house, and over a period of several hours. The history of violence, the defensive cuts on Ms. Hilton's hands, and the 42 blunt impact injuries are evidence sufficient for a jury to infer deliberation and reflection before and during the beating. While Mr. Sherrill correctly asserts that, standing alone, multiple wounds and sustained violence cannot support an inference of premeditation, the infliction of multiple blows is strong evidence of premeditation. We conclude that a rational juror could find that the evidence, taken together, is sufficient to find premeditation beyond a reasonable doubt. Accordingly, we affirm.
Dissent
To find premeditation there must be at least circumstantial evidence “where the inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict is substantial.” Because of the absence of evidence of premeditation in this record, I would reverse.
The cases relied upon by the majority share two characteristics: the defendant's use of some instrument in accomplishing the act of murder and specific fatal injuries. Neither characteristic is present here.
For instance, in State v. Allen, 47 P.3d 581 (2006), the defendant first wrestled with and then strangled the victim, using a telephone cord until it broke, and then he got a rifle from a cabinet that he used to strike the fatal blows. This shows sufficient evidence of premeditation—a deliberate formation of and reflection upon the intent to take the victim's life. When there is evidence of a decision to use a weapon, particularly in escalation of a hand-to-hand struggle, the jury can infer that the user identified some purpose and consequence of the weapon's use, which shows deliberation. But there is no such evidence in the case before this court. Kenith Wayne Sherrill could have picked up any number of objects in the cluttered motor home to use as a weapon. But he used nothing. “[S]tanding alone, multiple wounds and sustained violence cannot support an inference of premeditation.”
The absence of a weapon is also particularly significant in this case when considering the slight stature of both Mr. Sherrill and Teressa Hilton. I can envision cases of premeditation where no weapon is used but a defendant's size outmatches the victim and there is sustained violence with specific devastating injuries. But that is not the case here. On direct examination of forensic pathologist Dr. Gina Fino, the State asked whether internal bleeding of the brain is “in and of itself a life threatening situation.” Her response was open ended: “Depending upon which parts of the brain are involved, yes.” When addressing Ms. Hilton's specific injury, Dr. Fino described it as something one would see in “low speed or low impact vehicle type crashes.” In response to questioning as to whether the amount of blood that had collected in Ms. Hilton's chest was significant, Dr. Fino stated that it was “a moderate loss of blood.” Dr. Fino was asked whether the internal bleeding in the chest cavity was “something that in and of itself would be life threatening to a person.” Dr. Fino responded that it was because with “blood . . . irritating the chest cavity, it's going to cause a decreased ability to breathe.” The State questioned Dr. Fino regarding whether the laceration on the edge of the liver, is “in and of itself potentially a life threatening injury.” Dr. Fino responded that it was, mainly because such an injury “causes bleeding and loss of blood, [which] decreases the [***25] amount of nourishment that gets to the tissues.”
It is also noted that Ms. Hilton had a dangerously high blood/alcohol level of .32 grams per 100 milliliters, which can be judicially noted . . . to be within the fatal range. In State v. Harris, 385 P.2d 18 (1963), the victim “had been struck on the head several times with a blunt instrument with such force that in one place her skull had been fractured into her brain.” The victim was also strangled with a garrote fashioned from a vacuum cleaner cord and handle. While strangulation was the immediate cause of death, the victim would have died as a result of the skull fracture. In this case, none of Ms. Hilton's injuries were, on their own, specific or devastating.
The absence of an identifiable coup de grace separates the injuries in this case from those that might be found in a premeditated beating death. None of Ms. Hilton's injuries, alone or together, can be viewed as being struck with such brutal force to show that they were borne of “‘deliberate formation of and reflection upon’” the intent to take Ms. Hilton's life. As noted in Harris: “‘[P]roof of the fact of killing, alone, does not raise a presumption of premeditation or deliberation, but premeditation or deliberation may be inferred from the circumstances of the killing.’” The challenge in the case before us is to discern premeditation from the circumstances of the fatal beating apart from the death itself. There is nothing to be found.
In Bingham, the evidence showed three to five minutes were required to manually strangle the victim. The Supreme Court found the evidence of the strangulation alone insufficient. The court held:
[T]o allow a finding of premeditation only because the act takes an appreciable amount of time obliterates the distinction between first and second degree murder. Having the opportunity to deliberate is not evidence the defendant did deliberate, which is necessary for a finding of premeditation.
Here, Mr. Sherrill had an opportunity to deliberate but the evidence does not establish facts from which an inference of deliberation can be found. The majority does not point to any evidence of premeditation but determines the jury could have concluded that the evidence existed anyway. Bingham requires us to ask, did the premeditation occur? not could the premeditation have occurred? Because Mr. Sherrill did not use counsel and participated precious little in his own defense, it is easy to see how the jury could be swayed by the one-sided presentation. But the State limited its closing argument to the opportunity for premeditation and the sustained violence:
Ladies and gentlemen, when you consider this and all the evidence, there is no question but that the defendant was able to engage in the cognitive process to build an intent to kill, which clearly took more than a moment in time. . . .
What do we know about the situation as it was? Was there an accident? Not 42 times. Was there any showing of anything other than traumatic force that was intentionally and volitionally applied after having ample time to stop? But not stopping, hitting and continuing to hit and killing, killing in ways where there are three major traumatic injuries.
The jury was instructed that in order for premeditation to be found, the law requires evidence of deliberation to form an intent to take human life and some time, after the formation of the settled purpose, in which a design to kill is deliberately formed. The evidence here shows three traumatic injuries, none of which were individually fatal, that occurred over some time and took place in a number of rooms while the victim was both standing up and lying on the ground. This evidence does not show the formation of a design to kill by the infliction of multiple blows to various parts of a victim's body. It does not seem logical to plot the death of another in this manner. While I am struck and sickened by the evidence of violence in this case, viewing that evidence in the light most favorable to the State, it is insufficient from which a reasonable jury could infer that Mr. Sherrill formed the intent to beat Ms. Hilton to death with his bare hands. Because I find insufficient evidence to establish premeditation, I would reverse.
You Decide: Misdemeanor Manslaughter
A Oklahoma statute provides that A homicide is misdemeanor manslaughter when it is perpetrated without a design to effect death by a person engaged in the commission of a misdemeanor . . . Ceasar struck and killed a pedestrian and injured another pedestrian, both of whom were crossing the street. Cesar’s license had been revoked 3 ½ years earlier as a result of a conviction for narcotics possession. The Oklahoma Court of Criminal Appeals ruled that the question is whether the underlying misdemeanor is causally related to the decedent’s death. Would you find Ceasar guilty of misdemeanor manslaughter? State v. Ceasar, 237 P.3d 792 (Ok. Ct. Crim. App. 2010).
State v. Ceasar, 237 P.3d 792 (Ct. Crim. App. Ok, 2010)
Johnson, P. J.
Issue
This case raises the single issue of whether the District Court erred in ruling that as a matter of law the offense of Driving While Privilege Revoked cannot be used as a predicate misdemeanor for the crime of misdemeanor manslaughter . . .
Facts
On July 8, 2008, Jasmine Lee and Rosemary Taylor were struck by a 2000 Green Chevrolet Impala while crossing the street. Ms. Lee was killed, Ms. Taylor was severely injured, and the driver of the vehicle fled the scene. The day after the accident, Ceasar's girlfriend noticed that his vehicle—a 2000 Green Chevy Impala—had a cracked windshield and a dented hood. Subsequent investigation of the accident revealed pieces of the vehicle recovered from the accident scene matched missing pieces on Ceasar's vehicle. Ceasar was ultimately arrested and charged based on additional information establishing his identity as the vehicle's driver. At the time of this offense, Ceasar had three prior felony convictions.
On February 14, 2005, approximately 3 1/2 years prior to the accident, Ceasar's license was revoked following felony convictions for Possession of a Controlled Dangerous Substance in Oklahoma County. Preliminary hearing testimony established, circumstantially, that Ceasar was driving the vehicle that hit the victims, resulting in the death of one of the women and severe injury of the other. Ms. Taylor testified that she and Ms. Lee were crossing the street after waiting for the light to change when they were struck by a vehicle, subsequently identified as belonging to Ceasar. The State admitted evidence at preliminary hearing establishing that Ceasar's license was revoked and had not been reinstated at the time of the accident.
At the conclusion of the initial portion of the preliminary hearing, Judge Doak asked the parties to brief the issue of whether the misdemeanor manslaughter charge was proper, considering that Ceasar's driving without "an effective piece of paper in his pocket" was not the cause of the victim's death. Judge Doak ultimately concluded the State had failed to show that Ceasar's driving while privilege revoked was the "direct and proximate cause" of Ms. Lee's death. Judge Elliott affirmed that ruling, finding that as a matter of law, Driving While Privilege Revoked cannot serve as the predicate offense for a charge of misdemeanor manslaughter.
We respectfully disagree with the district court's conclusion. Misdemeanor manslaughter is codified at 21 O.S.2001, § 711(1). A homicide is misdemeanor manslaughter when it is perpetrated without a design to effect death by a person engaged in the commission of a misdemeanor. . . . [T]he statute does not distinguish among the type or category of misdemeanor which can be used as the underlying offense in a misdemeanor manslaughter charge. It is clear that the misdemeanor of Driving While Privilege Revoked can be used as the underlying offense in a misdemeanor manslaughter charge. Judge Elliott's ruling, finding otherwise, was error.
We also find it was error for Judge Doak to conclude that there was no causation between the underlying misdemeanor and Ms. Lee's death. Characterizing Ceasar's actions as nothing more than driving without an "effective piece of paper" ignores the gravity of the revocation sanction imposed against him.
Driving is a privilege, not a right. "The Oklahoma state government regulates the activity of driving on the state's highways in the interest of the public's safety and general welfare." The act of revoking the privilege to drive is a determination that the individual is not fit to participate in the regulated activity of operating an automobile. The revocation of an individual's privilege to drive based upon the conviction of a drug offense serves the legitimate interest of protecting the public from the dangers presented by potentially impaired drivers. Driving while the privilege is revoked is much more than just operating a vehicle "without an effective piece of paper."
This Court has recently seen several cases requesting guidance regarding application of the misdemeanor manslaughter statute. Those inquiring seek the establishment of some hard and fast rule regarding the application of this intentionally broad statute, asking for a check list of sorts denoting which misdemeanors can and cannot serve as the basis for a misdemeanor manslaughter charge. . . . [T]he scope of the statute is apparent from the plain language written into it by the legislature. By design, the statute does not distinguish among the type or category of misdemeanor which can be used as the underlying offense in a misdemeanor manslaughter charge, providing that any misdemeanor satisfies the initial step in charging misdemeanor manslaughter.
Instead, the focus should be on whether the underlying misdemeanor offense was causally related to the decedent's death. A single test of casual relation, often referred to as "proximate cause," is applied to all types of criminal homicide, and focuses on whether the defendant's conduct was a substantial factor in bringing about the victim's death. That other factors may have contributed to the death does not necessarily absolve the defendant of criminal liability for homicide in the commission of a misdemeanor.
This Court has previously recognized that proximate cause would be absent where a defendant unintentionally and otherwise without culpability struck and killed a person while driving without a vehicle license tag. Likewise, proximate cause would be absent where a defendant struck and killed a person who had intentionally thrust himself into the path of the defendant's automobile while the defendant was driving at an excessive rate of speed. In short, review of the facts supporting the underlying misdemeanor and causation between misdemeanor and the resulting death is necessary to avoid a miscarriage of justice. Once all the facts are fleshed out, the defendant's actions may or may not have constituted a substantial factor in the victim's death.
The assumption in this case was that Ceasar's revoked license was merely a missing piece of paper. Review of the underlying facts reveals that Ceasar was involved in an offense against the public safety and welfare. Had Ceasar not been driving, safely or unsafely, Ms. Lee would still be alive and Ms. Taylor would not have been injured. Ceasar's conduct—driving a vehicle while the privilege was revoked—was a substantial factor in bringing about Ms. Lee's death and Ms. Taylor's injuries.
You Decide: First and Second Degree Murder
Defendant Anderson was found guilty of the first-degree murder of ten-year old Victoria Hammond. An automatic appeal was taken to the California Supreme Court. Anderson contended that the evidence did support his conviction for first-degree murder.
Anderson was a San Jose cab driver and had been living for roughly eight months with a Mrs. Hammond and her three children, Cynthia, aged 17, Kenneth, aged 13, and the victim, Victoria, aged 10. Mrs. Hammond left for work at 7:30 a.m. on December 7, 1962, leaving Victoria at home with the defendant. Anderson had not worked for the past two days and had been drinking heavily. The victim's 13-year-old brother Kenneth testified that he arrived home from school at 3:30 p.m. on December 7 and found the front door locked. This was not unusual and he went around to the back of the house and down to the basement. He remained the basement for a period of time working with his microscope. Kenneth heard a noise coming from upstairs in the house which sounded like boxes and other things being moved around, “like someone was cleaning up.” He then heard the shower water running. Kenneth further recounted that he came up from the basement and went to the back porch screen door. The screen door was locked, which also was not unusual, and Kenneth pulled it open. He went into his bedroom to change his clothes and returned through the back porch to the kitchen door which was also locked. Kenneth knocked on the door and the defendant opened it. The defendant only was wearing pants. Kenneth went into the kitchen and asked defendant for money for a dance that he needed to attend that evening. Kenneth noticed the blood on the kitchen floor and the defendant explained that he had cut himself. Kenneth finished dressing and left the house sometime before 4 p.m.
Mrs. Hammond arrived home around 4:45 and found the front door locked and rang the doorbell. She noticed blood on the couch in the living room and the defendant told her that Kenneth had cut himself playing with a knife and had gone to a dance. She went to the store and when she returned the defendant was still drinking liquor. At around 6:30 p.m., Kenneth realized that he had forgotten his wallet and returned home. As he approached the front door, his mother came out and asked to see the cut on his arm. Kenneth explained that he had no cut. His mother than asked defendant about the blood in the kitchen and the defendant told her that Victoria had cut herself, but that the cut was not serious. The defendant explained that Victoria was at a friend's for dinner. The mother wanted to take Kenneth with her to get Victoria. Kenneth happened to look into Victoria's room and found her nude, bloody body under some boxes and blankets on the floor near her bed. Kenneth ran out of the room screaming that defendant had killed her. Mrs. Hammond went next door to phone the police.
The police arrived at 7 p.m. and found that the shades were down on all the windows and that the doors were locked. The arresting officer testified that defendant was wearing slacks, no shirt or shoes, and that there was no blood on him. The police found that the victim's torn and bloodstained dress had been ripped from her and that her clothes, including her panties out of which the crotch had been ripped, were scattered throughout various rooms of the house. Her slip with the straps torn off was discovered under the bed in the master bedroom and there were bloody footprints matching the size of the victim's leading from the master bedroom to Victoria's room and there was blood in almost every room including the kitchen, the floor of which appeared to have been mopped. A blood test taken at 7:45 p.m. indicated that the alcohol content in defendant's blood was .34 percent, which was much higher than necessary for an automobile driver to be classified as "under the influence." Over 60 wounds, both severe and superficial, were found on Victoria's body. The cuts extended over her entire body, including one extending from the rectum through the vagina, and the partial cutting off of her tongue. Several of the wounds, including the vaginal lacerations, were post mortem. No evidence of spermatozoa was found in the victim, on her panties, or on the bed next to which she was found.
The California Supreme Court stated that the type of evidence that ordinarily is sufficient to sustain a finding of a willful, premeditated and deliberate killing falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward the killing ("planning" activity); (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life for a "reason." Should the California Supreme Court affirm Anderson’s conviction for the willful, premeditated and deliberate killing of Victoria. See People v. Anderson, 447 P.2d 942 (Cal. 1968).
People v. Anderson, 447 P.2d 943 (Cal. 1968).
We must, in the absence of substantial evidence to support the verdict of first degree murder, reduce the conviction to second degree murder. In the instant case the court instructed the jury on . . . first degree murder: (1) a willful, deliberate, and premeditated killing.
Viewing the evidence in a light most favorable to the judgment, the first degree conviction must rest upon the following supporting proof: when Kenneth arrived home from school he found the doors locked, and when the police officers arrived to arrest defendant they found the shades in the front room down; defendant apparently had attempted to clean up the bloodstained kitchen, and had fabricated conflicting explanations of the blood that Kenneth noticed in the kitchen, the blood that Victoria's mother observed in the living room, and Victoria's absence on the evening of the killing; defendant had stabbed Victoria repeatedly and had inflicted a post mortem rectal-vaginal wound; bloodstains were found in several rooms of the house; Victoria's bloodstained and shredded dress was found under her bed next to which her nude body was discovered under a pile of boxes and blankets; Victoria's slip, with the straps torn off, was found under the bed in the master bedroom; the crotch was ripped out of Victoria's bloodsoaked panties; and the only bloodstained clothes of defendant's which were discovered were his socks and his shorts, from which facts the People argue that defendant was almost nude during the attack.
It is well established that the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation. "If the evidence showed no more than the infliction of multiple acts of violence on the victim, it would not be sufficient to show that the killing was the result of careful thought and weighing of considerations." (Moreover, although premeditation and deliberation may be shown by circumstantial evidence the People bear the burden of establishing beyond a reasonable doubt that the killing was the result of premeditation and deliberation, and that therefore the killing was first, rather than second, degree murder. Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, we must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation, or whether it "leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation." One "phase of the lack of conceptual consistency [in differentiating between murder of the first and second degrees] is manifest in the varying bases upon which the reviewing courts have predicated exercise of the power to reduce judgments to a lower degree or lesser crime. . . . Regardless of imperfections of academic concept either in the statutory law as enacted or in some of the decisions interpreting it, we are faced with the task of making practical application of that law . . . dividing the offense of murder into two degrees. . . ." Recognizing the need to clarify the difference between the two degrees of murder and the bases upon which a reviewing court may find that the evidence is sufficient to support a verdict of first degree murder, we set forth standards, derived from the nature of premeditation and deliberation as employed by the Legislature and interpreted by this court, for the kind of evidence which is sufficient to sustain a finding of premeditation and deliberation. We then analyze representative cases, including those which the People argue require an affirmance here. In conclusion we demonstrate, in light of the developed standards and two very similar cases in which this court reduced the judgment from first to second degree murder, that the kind of evidence from which a jury can reasonably infer that an accused wilfully, deliberately, and with premeditation killed his victim within the meaning of Penal Code section 189 is totally lacking here.
As we noted in People v. Bender, 27 Cal.2d 164, 183, we find no indication that the Legislature intended to give the words "deliberate" and "premeditated" other than their ordinary dictionary meanings. Moreover, we have repeatedly pointed out that the legislative classification of murder into two degrees would be meaningless if "deliberation" and "premeditation" were construed as requiring no more reflection than may be involved in the mere formation of a specific intent to kill. Thus we have held that in order for a killing with malice aforethought to be first rather than second degree murder, "'[the] intent to kill must be . . . formed upon a pre-existing reflection,' . . . [and have] been the subject of actual deliberation or forethought . . . ." We have therefore held that "[a] verdict of murder in the first degree . . . [on a theory of a willful, deliberate, and premeditated killing] is proper only if the slayer killed 'as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on coolly and steadily, [especially] according to a preconceived design.' The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed"; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).
Analysis of the cases will show that this court sustains verdicts of first degree murder especially when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). As will become clear from the following analysis of representative cases, the present case lacks evidence of any of the three types.
In People v. Hillery, the jury could reasonably infer that the defendant engaged in the following "extended course of conduct": defendant parked his car near the victim's (a 15-year-old girl's) house, entered the house surreptitiously, seized the victim while she was sewing and covered her head with a towel and slip to prevent outcry or identification, cut a length of cord in another room to secure her hands behind her, took the victim's scissors, dragged her to a nearby irrigation ditch where her body was subsequently found, engaged in a struggle with the victim, and then plunged the scissors directly into her chest. Hillery represents a case of very strong type (1) evidence: the defendant's surreptitious conduct, subjection of his victim to his complete control, and carrying off of his victim to a place where others were unlikely to intrude, can be described as "planning" activity directly related to the killing. Moreover, there is also strong evidence of type (3): directly plunging a lethal weapon into the chest evidences a deliberate intention to kill as opposed to the type of "indiscriminate" multiple attack of both severe and superficial wounds which defendant engaged in the instant case.
In People v. Quicke (1964), 390 P.2d 393, the defendant came to the victim's town to find a girl with whom to have sexual intercourse. He spent the afternoon of the killing looking for such a girl. Defendant followed the same procedure with the victim that he had used successfully two weeks earlier. When the victim did not capitulate to his threats, the defendant killed her, drove her to a less travelled area, and then, after considerable preparation, engaged in intercourse with her corpse. The court held that the evidence reasonably supported the inference that "upon preconceived reflection [the defendant] deliberately formed a plan to coerce the victim into engaging in intercourse with him while she was alive, or if that failed, to kill her to satisfy his desires with her corpse."
Quicke, like Hillery, involves substantial evidence of type (1)—pre-killing "planning" activity. In both cases the activity can be most meaningfully described as intended to result in that fate (in Quicke, forcible rape and/or killing if rape unsuccessful) which the victim in fact suffered. Moreover, the record in Quicke also contains evidence of type (2) insofar as defendant engaged in similar conduct on a previous occasion.
In People v. Kemp (1961) 359 P.2d 913, the defendant entered his victim's apartment through a window after removing the screen, found the victim alone in bed, tied stockings around her neck and hands, gagged her with a washcloth, and then raped and strangled her. In Kemp, as in Hillery, defendant's surreptitious coming upon the victim and calculated efforts to prevent her from identifying her assailant or crying out for help, together with the deliberate manner of killing—evidence of types (1) and (3)—point to a killing which is the result of "preconceived design" as opposed to "an explosion of violence."
In People v. Cartier (1960) 353 P.2d 53, the evidence supported an inference that defendant, after becoming angered over his wife's talking to a sailor in the last of several bars that they had been in on the evening of the killing, went home with his wife and then hit her over the head with a blunt instrument, procured various knives from the kitchen, brought them to the room where his wife's body was found and, on the basis of his knowledge as a butcher, made superficial cuts on her body to locate the heart and vagina and then murdered her by severing them from her body.
Cartier represents a case of strong type (3) evidence: the manner of killing must have been the result of calculation. Moreover, the superficial wounds apparently inflicted with blunt instruments supply evidence of "planning" activity intended to dull the victim's resistance; the weapons used were consistent with a deliberate choice by defendant made on the basis of his experience as a butcher; and the fatal wounds were consistent with a sexual-jealousy "motive" for the killing which the evidence reasonably supported. Cartier thus involves evidence of all three types which points to a "calculated type of killing."
People v. Cole (1956) 301 P.2d 854, involved a defendant living with an impecunious woman (his victim) and desirous of marrying a well-to-do woman. The evidence established that the defendant secretly took the latter's gun from her dresser the week before the killing, that he was carrying it on the evening of the killing, and that he used it to kill his victim. Moreover, the evidence also tended to show that defendant planned to implicate the wealthier woman so as to secure her assistance in concealing his guilt and that he killed the victim to remove her as an obstacle to his marital plans. As the court pointed out, "a showing of motive indicating that the killing was planned" tends to support an inference of premeditation and deliberation. Cole thus represents a case of primarily type (2) evidence supported by type (1) evidence.
In People v. Stroble (1951) 226 P.2d 330, the defendant's victim, a six-year-old girl, was a friend of defendant's granddaughter and had previously submitted to defendant's fondling her. On the day of the killing she found defendant alone in his son-in-law's house where she came to find her friend. When she objected to, and started screaming because of, defendant's attempt to molest her, he tried to silence her by choking her. After she became quiet and then started to move again, defendant inflicted several direct, deliberately placed fatal wounds with a hammer, an ice pick, the blunt end of an axe, and a kitchen knife, for the claimed purpose of relieving her suffering.
In Stroble, as in Cartier, the defendant selected particular instruments to kill his victim after rendering her totally passive (type (1) evidence), had a relationship with the victim prior to the killing from which a "motive" could be inferred (type (2) evidence), and inflicted deliberately placed blows on the victim, all of which must have been intended to result in death (type (3) evidence). While the condition of the victim's body and other physical evidence at the scene of the crime in Stroble, when considered in light of the defendant's conduct immediately prior to the killing and his past relationship with his victim, point to a "calculated" killing, the condition of the victim's body in the instant case, when considered in light of the absence of any evidence of the defendant's conduct immediately prior to the killing or any "unusual" relationship with the victim, points to a "random" attack which was explosive rather than calculated. The Attorney General's argument that Stroble holds that premeditation and deliberation may be inferred from the condition of the body and other physical evidence at the scene of the crime, and that therefore there is sufficient evidence of premeditation and deliberation in the instant case is thus totally devoid of merit.
The present case is strikingly similar to People v. Granados, 49 Cal.2d 490, in which this court reduced a verdict of first degree murder to second degree murder on the ground that the evidence was insufficient to show either premeditation and deliberation or that the killing occurred in the course of an attempted violation of section 288 of the Penal Code. The evidence of premeditation and deliberation in Granados, while clearly insufficient to sustain the verdict of first degree murder on that theory, was stronger than in the present case in which we find no evidence from which the jury could reasonably infer that defendant acted "'with a deliberate and clear intent to take life.'" In Granados, defendant lived in a common law relationship with the mother of his victim, a 13-year-old girl. After taking the deceased and her brother to a real estate office, defendant gave the brother a note requesting money to take to his mother who worked nearby. When the brother returned home with the requested money he saw defendant at the rear of the house. As he started to enter the house, defendant came running to him and asked him to get some alcohol for his sister (decedent) who had fainted. The brother noticed blood on one of defendant's hands and that defendant had the other hand behind his back.
The brother unsuccessfully looked for some alcohol. Defendant then suggested they get a doctor and an ambulance. The brother then noticed that defendant's hand had been washed. Defendant then drove the brother to a drugstore, gave him 50 cents for some alcohol, and told him he would wait for him. The defendant drove away and did not return for the brother.
Defendant then called the mother and told her the victim had poisoned herself. The mother returned to the house with a friend who found the victim's body in the bedroom lying on the floor. Her skirt was pulled up exposing her private parts, there were bloodstains on the wall, floor, and decedent's head, and a machete covered with blood was lying in a corner of the living room behind a small heater.
Defendant testified that on the day of the killing the girl was helping him clean the house and that he asked her if she was a virgin, to which she replied that it was none of his business. Defendant said that she had never answered him in that way and that he therefore struck her with his hand, but did not remember striking her with the machete.
Decedent's mother testified that she had warned defendant that the next time he bothered her daughter, she would tell the police, and that defendant in reply threatened to kill her and both her children if she did.
The prosecution argued that the murder was sexually motivated. This court, per Justice McComb, held that the evidence was insufficient as a matter of law to support a verdict of first degree murder.
Applying the standards developed above to Granados, we find that the only evidence of (1) defendant's behavior prior to the killing which could be described as "planning" activity related to a killing purpose was defendant's sending the victim's brother on an errand and apparently returning home alone with the decedent. Such evidence is highly ambiguous in terms of the various inferences it could support as to defendant's purpose in so behaving. The evidence of (2) defendant's prior behavior with the victim (alleged sexual molestation and his question as to her virginity) is insufficient to support a reasonable inference that defendant had a "motive" to kill the girl, which could in turn support an inference that the striking with the machete was the result of a "preconceived design" and "forethought." Finally, the evidence of (3) the manner of killing (brutal hacking) does not support a reasonable inference of deliberately placed blows, which could in turn support an inference that the act of killing was premeditated rather than "hasty and impetuous."
Justice Carter dissented in Granados on the ground that the following evidence was sufficient to sustain a finding of premeditation and deliberation: the nature of the instrument, the condition of the body, defendant's sending the brother on an errand immediately prior to the time of the killing, and defendant's prior threats against the girl and her family. Justice Carter's dissent demonstrates that there was some evidence of premeditation and deliberation in Granados, albeit insufficient. Here, on the other hand, we do not have any evidence of either (1) any conduct by defendant prior to the killing which would indicate that he was planning anything, felonious or otherwise, or (2) any behavior towards Victoria from which the jury could reasonably infer that defendant had a "motive" or desire to sexually attack and/or kill her. The evidence of (3), the manner of killing and the condition of the body, is the same in both cases: the only inference which the evidence reasonably supports in either case is that the killing resulted from a "random," violent, indiscriminate attack rather than from deliberately placed wounds inflicted according to a preconceived design.
Finally, the defendant in Granados, as here, attempted to "cover up" the crime by lying to the brother and the mother of the victim. Although this type of evidence may possibly bear on defendant's state of mind after the killing, it is irrelevant to ascertaining defendant's state of mind immediately prior to, or during, the killing. Evasive conduct shows fear: it cannot support the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation.
The present case is also similar to People v. Craig, 49 Cal.2d 313, in which this court, per Justice Carter reduced a verdict of first degree murder to second degree murder on the ground that the evidence was insufficient to show either premeditation and deliberation or that the killing occurred in the course of attempted rape. The evidence of premeditation and deliberation in Craig is also stronger than that in the present case.
In Craig the defendant told someone the morning of the murder that he would "like to have a little loving." On the evening of the murder he went to a bar where he threatened a woman who refused to dance with him. Later that evening he left another bar with a man who saw the victim approaching the intersection where he parted company with the defendant. The victim was found the next morning under a car at a service station near the above intersection. She apparently had been dragged there. She was wearing a raincoat with only a slip and panties on underneath. All three garments were ripped open so that the front part of her body was exposed. She was lying on her back with her legs spread apart. She had suffered multiple contusions, caused by an estimated 20 to 80 blows. Four heel marks were found on her body, and a key to the defendant's hotel room was found in her clothing. The morning after the murder defendant told someone that "I beat up a woman" and that when he hit them "they stayed hit." The court held that "the evidence, as a matter of law, shows only second degree murder. . . . The record shows a killing accomplished with great brutality, but does not show any premeditation."
In Craig, as opposed to the present case, there was some evidence of (1) defendant's conduct prior to the killing which would support an inference that he was looking for a girl with whom to engage in sexual intercourse. Although such conduct may be described as "purposeful" behavior, it has no bearing as to an intention to kill his victim. As in the present case, no evidence in Craig points to (2) any prior relationship or behavior with the victim from which the jury could infer that defendant entertained a "motive" for killing his victim. And in both cases the evidence of (3), the way in which the victim suffered death, points only to a violent, brutal attack; it cannot support the double inference that the wounds were inflicted deliberately and in a particular manner, and that therefore the killing was deliberate and executed with premeditation. Finally, in Craig, the evidence of the statements and conduct of defendant after the killing resembles the evidence of defendant's cleaning up and false stories here: such evidence is highly probative of whether defendant committed the crime, but it does not bear upon the state of the defendant's mind at the time of the commission of the crime.
We conclude that a finding of premeditation and deliberation cannot be sustained in the absence of any evidence of (1) defendant's actions prior to the killing, (2) a "motive" or "reason" from which the jury could reasonably infer that defendant intended to kill Victoria, or (3) a manner of killing from which the jury could reasonably infer that the wounds were deliberately calculated to result in death. As in People v. Granados, and People v. Craig, the evidence suffices only to support a verdict of second degree murder.
The judgment is modified by reducing the degree of the crime to murder of the second degree and, as so modified, is affirmed. The cause is remanded to the trial court with directions to arraign and pronounce judgment on defendant in accordance with the foregoing ruling.
You Decide: Aggravated Capital Punishment Murder
Jesse Guardado was convicted of murder in the first degree and sentenced to death. Guardado was indicted on murder in the first degree and robbery with a weapon based on events in Walton County. Guardado also received a concurrent sentence of life in prison for this. At the time of these offenses on September 13, 2004, Guardado was on conditional release supervision after having been incarcerated for three counts of robbery.
Guardado had known the victim, 75-year-old Jackie Malone, since 2003, and had rented places to live from her. He had been a guest in her home, including a few overnight stays when he was between rentals. Guardado had received financial assistance from Ms. Malone on numerous occasions and she had assisted him in getting the job with the local water treatment plant. Guardado knew that Ms. Malone, kept some money in her wallet.
On September 13, 2004, Guardado wanted to get high and continue his recent crack cocaine binge. Desperate for money to fix his truck and obtain drugs, Guardado decided to rob a local grocery store. His attempted robbery with a knife was frustrated by one of the employees. Guardado next decided to rob and murder Ms. Malone that night. He knew that she lived in a secluded area and would open her home to him based on their prior trusting relationship.
Guardado drove his girlfriend's vehicle to work for the night shift. He generally maintained a change of clothes in his girlfriend's car because of the nature of his work at the treatment plant. He made sure there were clothes in the car because a hurricane was due to make landfall in a few days. Guardado armed himself with a metal "breaker bar." Guardado’s also drove to the parking lot at the Wal-Mart where he got a kitchen knife from his disabled truck that was parked there. With both weapons in his possession, he then drove his girlfriend's car to Ms. Malone's house.
Ms. Malone was asleep and Guardado loudly knocked on her door and managed to her. She greeted Guardado, and he told her he needed to use the telephone. As she turned her back to reenter the house, Guardado pulled the "breaker bar," which was hidden behind his back in his pants and struck Ms. Malone a number of times about her head. Ms. Malone raised her hands in defense, and then fell to the living room floor. Ms. Malone did not die from the numerous blows with the "breaker bar," so Guardado pulled the kitchen knife and stabbed her several times, then slashed her throat.
Guardado hit her on the head with the "breaker bar" and found that she had not died and continued to hit her several more times. He explained that when she fell on the floor behind the couch it seemed she was not going to die and he stabbed her in the heart with the knife “so it would be over.” After beating and stabbing Ms. Malone, Guardado went to her bedroom, searched through her belongings for money and valuables and took her jewelry box, briefcase, purse, and cell phone.
Dr. Minyard, a forensic pathologist and Chief Medical Examiner for Walton County, testified concerning the cause of Ms. Malone’s death and found several injuries including (1) at least twelve abrasions, contusions, and lacerations of the skin on the head, neck and face, (2) bruising under the surface of the scalp, (3) a subarachnoid hemorrhage, (4) at least two incised wounds on the neck, (5) five stab wounds to the chest, (6) a fracture of the finger, and (7) incised wounds to the right hand. The evidence further revealed Ms. Malone was conscious at least through the time that Guardado inflicted the stab wound to her heart. Dr. Minyard said the fracture and wounds to Ms. Malone's hands were consistent with the victim attempting to fend off repeated blows from the breaker bar and her attacker, by reaching or grabbing for the knife.
Guardado challenged the verdict on several grounds. Consider the precedent established in Owen v. State. Will Guardado be successful in denying that the murder was carried out in a heinous, atrocious, or cruel fashion (HAC) and in denying that the crime was committed in a cold, calculated and premeditated fashion (CCP)? See Guardado v. State, 965 So.2d 108 (Fla. 2007).
Keep in mind that the Pennsylvania Supreme Court in an earlier decision affirmed the conviction of Peter Michael Karenbauer for the intentional killing of eight-year-old Lacy Johnson, the daughter of the woman with whom he lived. Lacy died as a result of the combined impact of eight knife wounds, a wound that caused a collapsed lung and drowning. The Supreme Court stressed that had Karenbauer “intended to simply kill the victim, he could have used his prohibitive size advantage and the knife in his possession to do so far more expeditiously than he actually did. Instead, he elected to cause eighteen separate wounds scattered over the victim's arms, chest, back, head and neck. . . . not deep enough to cause fatal injury, but certainly deep enough to cause pain to the victim, who remained conscious throughout her ordeal.” Karenbauer’s intent to torture Lacy is indicated by the fact that “went so far as to draw the knife across the victim's throat, but he did not cut the victim deeply enough to fatally wound her.” At some point, the knife broke and Karenbauer decided to drown Lacy, “who would have been aware of her immersion and impending death by drowning.” Commonwealth v. Karenbauer, 715 A.2d 1086 (Pa. 1988).
Guardado v. State, 956 So.2d 108 (Fla. 2007).
Guardado argues that the evidence was insufficient to establish the heinous, atrocious or cruel (HAC) aggravating circumstance and that the trial court erred when it instructed the jury it could consider the HAC circumstance based on these facts. Conversely, the State asserts there is competent, substantial evidence to support the trial court and jury's consideration and finding of HAC. We agree with the State, and affirm the trial court's determination that HAC is applicable to this case.
This Court has found competent, substantial evidence to support the HAC aggravator in a number of cases involving brutal beatings. See Dennis v. State, 817 So. 2d 741, 766 (Fla. 2002) (HAC affirmed where both victims suffered skull fractures and were conscious for at least part of the attack as they had defensive wounds to their hands and forearms); Bogle v. State, 655 So. 2d 1103, 1109 (Fla. 1995) (HAC affirmed where victim was struck seven times on the head, victim was alive during infliction of most of the wounds, and the last blows caused death); Wilson v. State, 493 So. 2d 1019, 1023 (Fla. 1986) (HAC affirmed where victim was brutally beaten while attempting to fend off the blows before being fatally shot). We have also upheld the HAC aggravator in cases where the victim has been repeatedly stabbed. See Owen v. State, 862 So. 2d 687, 698 (Fla. 2003) (citing Cox v. State, 819 So. 2d 705, 720 (Fla. 2002)); Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998) (affirming the HAC aggravator where the victim was stabbed or cut eighteen times and was alive when all the wounds were inflicted).
In this case the trial court found the capital felony was especially heinous, atrocious, or cruel pursuant to section 921.141 (5)(h), Florida Statutes (2004). The trial court said:
[T]his murder was indeed a conscienceless, pitiless crime, which was unnecessarily torturous to the victim. The evidence establishes beyond a reasonable doubt that the defendant administered a savage attack on Ms. Malone first by repeated blows about her head and limbs with a metal bar, which she tried to fend off and sustained a finger fracture; that the defendant observed Ms. Malone still alive and lying on the floor despite that flurry of blows; that the defendant then mindful of his previous prison job slaughtering cattle, took out a kitchen knife that he brought with him and twice slashed Ms. Malone's throat and stabbed her (including the fatal stab to her heart) while she grabbed for the knife further trying to fend off or fight her attacker. The defendant admitted the facts concerning the crime.
The record supports this determination.
Guardado confessed that he killed the victim. The autopsy revealed the victim was beaten about the head several times, stabbed repeatedly (including a mortal wound to the heart), and her throat slashed. Specifically, the medical examiner testified the victim had "multiple abrasions, contusions and lacerations of head and face." There were twelve lacerations to the head, five stab wounds to the chest and two incise wounds to the neck. The examiner also testified there were incise wounds to the victim's right hand, the type that happens when "the victim tries to grab the assailant's weapon and in so doing, is cut with the sharp blade." The medical examiner said she believed the victim was conscious during the attack because "she does have the defense wounds on her hands," indicative she was "still conscious enough to try to grab the assailant's weapon." This evidence supports the trial courts finding of HAC.
Contrary to Guardado's assertions, the victim did not lose consciousness quickly after the initial blows to her head. The defensive wounds are indicative of consciousness up to the time of the fatal stab wound to the heart. Under similar circumstances, we have affirmed findings of HAC where defensive wounds revealed awareness of impending death. See, e.g., Boyd v. State, 910 So. 2d 167, 191 (Fla. 2005) (finding of HAC affirmed where victim was repeatedly stabbed and evidence revealed victim was alive and conscious for some of the attack and was struggling with her attacker). More recently in Reynolds v. State, 934 So. 2d 1128, 1156 (Fla. 2006), we noted with approval the fact that the medical examiner's testimony established the victims had defensive wounds indicating consciousness during some part of the attack. Furthermore, "we have upheld the application of HAC even where 'the medical examiner determined the victim was conscious for merely seconds.'"
The trial court properly found HAC under the facts of this case, and the trial court properly instructed the jury on this aggravating circumstance.
Cold, Calculated and Premeditated
Guardado next argues the evidence was insufficient to establish the cold, calculated and premeditated (CCP) aggravator and that the trial court erroneously instructed the jury it could consider the CCP aggravator under these facts. Conversely, the State asserts there is competent, substantial evidence to support the trial court's finding of CCP. This Court has noted that to support the CCP aggravator, a jury must find (1) that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic or a fit of rage (cold); (2) that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) that the defendant exhibited heightened premeditation; and (4) that the defendant had no pretense of moral or legal justification. In this case, the CCP aggravator was proven beyond a reasonable doubt. The evidence reveals Guardado was desperate for money for drugs and to fix his vehicle. He first attempted to rob a local grocery store. When that robbery was thwarted by the victim, Guardado arranged to drive his girlfriend's vehicle to work for the night shift. Guardado knew he had a change of work clothes in the car because of the nature of his work at the water treatment plant and because a hurricane was expected to strike the area in the near future. Guardado told the police that he chose Ms. Malone to murder and rob that night because of the "secluded location of her home," and because she would open her home to him (even at night) due to their prior relationship. Before going to Ms. Malone's house, Guardado armed himself with the kitchen knife and a "breaker bar" to use as the murder weapons. Guardado said in his confession that "he knew what he was going to do when he drove to the victim's home." When he was asked if he planned to kill Ms. Malone he responded, "Yes, and get the money." These facts clearly show that the murder was the result of cool and calm reflection, with a careful plan, with the purpose of robbing the victim of her money so that the defendant could get high on drugs and fix his vehicle.
Contrary to Guardado's assertions that his drug use negates CCP, we have concluded that a chronic drug abuser can act "acted according to a deliberate plan," where the evidence shows he "was fully cognizant of his actions on the night of the murder." Robinson v. State, 761 So. 2d 269, 278 (Fla. 1999). In Robinson, the victim was beaten and then stabbed by a chronic drug abuser. Similarly to this case, Robinson confessed he stole the victim's property to pawn for money to purchase drugs. The trial court found the CCP aggravator, and we affirmed without discussion. In this case, there is likewise no evidence to support a conclusion that Guardado's drug use robbed him of the ability to plan and execute this murder. We therefore affirm the trial court's determination that the CCP aggravator is applicable to this situation.
The record reflects Guardado pled guilty to the charges and elected to waive the reading of the factual basis for each charge. However, the State read the factual basis for the charges from the indictment and Guardado did not object to any of the facts. Additionally, during the plea colloquy, Guardado expressed an understanding of the plea and the possibility that he could be given the death penalty. Furthermore, Guardado testified at the penalty phase regarding his crimes and essentially admitted his guilt. Accordingly, there is competent, substantial evidence in the record supporting Guardado's conviction for first-degree murder.
You Decide: Involuntary Manslaughter
Max Feinberg was convicted of the involuntary manslaughter of five individuals from methyl alcohol poisoning as a result of their consumption of sterno, a “jelly-like substance prepared and intended for heating purposes.” Sterno is solidified alcohol and popularly is referred to as “canned heat.” The substance has additional additives specified by the United States government that render it unfit for drinking purposes. Sterno primarily is used for cooking and heating. Feinberg owned a tobacco store in an impoverished area of Philadelphia with a large homeless population. He sold two types of containers of sterno, one marked for home use and one marked for institutional use. Both types of sterno contained approximately 3.75% methanol or wood alcohol, and 71% ethanol, or grain alcohol. Methanol is highly toxic if consumed in significant quantities. Feinberg was found to have been aware that the sterno he sold to homeless people was diluted with water or other beverages and provided these individuals with an inexpensive source of alcohol. Prior to December 1963 there had been no known fatalities from selling sterno. At this point, Feinberg received a new order of industrial sterno from the Richter Paper Company. The content of this new industrial sterno was fifty-four percent methanol content. The new cans were identical to the old cans of sterno in size and in appearance with a single exception. Each can of the new industrial sterno carried a skull and crossbones and was marked “Institutional Sterno. Danger, Poison: Not for home use. For commercial and industrial use only.” The containers of the sterno that Feinberg had previously been selling were marked “Caution. Flammable. For use only as fuel.” Feinberg received a shipment of this institutional sterno on December 21, 1963. The carton in which the new industrial sterno arrived did not indicate that the contents had been changed. On December 27, 1963, Feinberg called Richter Paper Company and stated that he wanted to return the remaining cans of the new industrial sterno. Charles Richter testified at trial that he had not been aware that the Sterno Corporation had modified the content of the sterno.
The evidence indicates that when helping a customer that Feinberg “recognized an order to ‘make one’ as a request for a can of sterno” and that he “referred to sterno as shoe polish and frequently requested purchasers to conceal their purchases under their coats.” Between December 21 and December 28, Feinberg sold roughly four hundred cans of the new industrial sterno. Between December 23 and December 30, thirty-person persons died in the area of Feinberg’s store of methanol poisoning. Did Feinberg cause the deaths of five individuals who purchases and subsequently drank the sterno and died of methyl alcohol poisoning? Should Feinberg as a store owner be held legally responsible for how customers use the sterno? Would you affirm Feinberg’s conviction for involuntary manslaughter? See Commonwealth v. Feinberg, 234 A.2d 913 (Pa. 1967) affirmed 253 A.2d 636 (Pa. 1969).
INVOLUNTARY MANSLAUGHTER
Commonwealth v. Feinberg, 234 A.2d 913 (P.A. Superior Ct., 1967).
There remains the question of whether the Commonwealth has established that the deaths under consideration were due to the criminal negligence of the appellant. Involuntary manslaughter consists of the killing of another person without malice and unintentionally, but in doing some unlawful act not amounting to a felony, or in doing some lawful act in an unlawful way. Where the act in itself is not unlawful, to make it criminal the negligence must be of such a departure from prudent conduct as to evidence a disregard of human life or an indifference to consequences. We are satisfied that the record clearly establishes that appellant, in the operation of his small store with part-time help, knew that he was selling Sterno in substantial quantities to a clientele that was misusing it; that in order to profit more from such sales he induced Richter Paper Company to procure for him a supply of the institutional product because the cost of same was less than the regular type with labels; that he was aware of the "poison" notice and warning of harmful effects of the new shipment received on December 21, 1963 but nevertheless placed it in stock for general sale by himself and his employees; and thereafter sold several hundred cans of it; and that he dispensed it without warning his purchasers of the harmful effect it would have if misused for drinking purposes, and without directing their attention to the warning on the containers. If the deaths of these five persons were the result of appellant's actions, it justifies his conviction for involuntary manslaughter. Although a more culpable degree of negligence is required to establish a criminal homicide than is required in a civil action for damages, we find the appellant's actions as fully meeting the definition and requirement of proof. In the light of the recognized weaknesses of the purchasers of the product, and appellant's greater concern for profit than with the results of his actions, he was grossly negligent and demonstrated a wanton and reckless disregard for the welfare of those whom he might reasonably have expected to use the product for drinking purposes. Hon. Charles L. Guerin, Judge, who tried these cases without a jury, found that the deaths of the five persons previously named were due to methyl alcohol poisoning due to drinking institutional Sterno, containing a large quantity of methanol, procured from the appellant. There is sufficient direct evidence to support this finding as to Juanita Williams.
We find no merit in appellant's argument that there is no evidence to prove he ever sold a can of the new institutional Sterno. The evidence clearly shows that he was in full charge of the operation of the store when the bulk of the new product was sold. Harold was only a part-time employee coming in after school and on Saturdays, and during this period appellant's wife and family were in Florida, which left appellant as the one who made the bulk of the sales. Nor do we find any merit in his argument that he was unaware of the warning on the cans. He must have handled many of them during the course of events when almost four hundred cans were sold. The circumstances established by the evidence sufficiently supports a finding that he did know of the change in markings but disregarded it. As far as instructing anyone else to sell the product, the fact that it was available for sale in an opened carton under the counter is sufficient to indicate an implied authorization.
The facts in this case do not indicate the prosecution of a person for acts done by another without his knowledge or consent. Appellant was the active participant with full knowledge. He, personally, and through his part-time employee, acting under his orders, committed the crimes. The judgments of sentence, therefore, are affirmed in the cases of Lynwood Scott; John Streich; James Newsome and Juanita Williams; and the judgment is reversed and appellant discharged in the case of Edward Harrell.
You Decide: Depraved Heart Murder
Following a party for his softball team at a club where he admitted drinking six beers, John Doub admitted that he struck two parked vehicles with his pickup truck. He immediately drove off because he was concerned that the police would detect that he had been drinking. Doub subsequently drank additional liquor and smoked crack cocaine; roughly two hours later, he collided into the rear of an automobile in which nine-year-old Jamika Smith was riding. The accident investigator determined that Doub’s pickup was traveling at a rapid rate and drove “up on top of [the car],” driving it down into the pavement and propelling the automobile off the street and into a tree. Doub once again left the scene of the accident; he later denied involvement and claimed that his pickup had been stolen. Jamika Smith died fifteen hours later as a result of blunt traumatic injuries caused by the collision. Six months following these events, Doub admitted to a former girlfriend that prior to the collisions, he had an argument with his second ex-wife, had been drinking alcohol and smoking crack, and had subsequently caused the collision. Doub was charged and convicted of second-degree depraved heart murder
Kansas Statutes Annotated section 21-3402 (2003 Supp.) defines depraved heart murder as the killing of a human being committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” Would you convict Doub? See State v. Doub, 95 P.3d 116 (Kan. Ct. App. 2004).
State v. Doub, 95 P.3d 116(Kan.App. 2004).
K.S.A. defines second-degree murder as follows:
Murder in the second-degree is the killing of a human being committed:
(a) Intentionally; or
(b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life."
When the offense is committed pursuant to subsection (b) our courts have employed the common-law nomenclature of "depraved heart" second-degree murder.
In State v. Robinson, 934 P.2d 38 (1997), our Supreme Court discussed the requirements for depraved heart murder:
Both depraved heart murder and reckless involuntary manslaughter require recklessness—that the killing be done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger. Depraved heart murder requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life. . . .
"We hold that depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter. Conviction of depraved heart second-degree murder requires proof that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This language describes a kind of culpability that differs in degree but not in kind from the ordinary recklessness required for manslaughter."
Since 1975 the appellate courts of many states have acknowledged that the required state of mind for depraved heart murder can be attributed to the driver of an automobile. Our review of such cases reveals that most jurisdictions with statutory provisions patterned after the Model Penal Code have acknowledged that the offense may be committed by automobile. Cases to the contrary generally construe and apply statutes that retain some requirement of malice. One commentator surveyed 20 cases between 1975 and 1986 and found the following factors as persuasive of the requisite state of mind:
"1. Intoxication. The driver was using alcohol, illegal drugs, or both.
"2. Speeding. Usually excessive rates are recorded.
"3. Near or nonfatal collisions shortly before the fatal accident. Courts believe that collisions should serve as a warning to defendants that their conduct is highly likely to cause an accident. Failure to modify their driving is viewed as a conscious indifference to human life.
"4. Driving on the wrong side of the road. Many cases involve head-on collisions. Included here is illegally passing or veering into oncoming traffic.
"5. Failure to aid the victim. The driver left the scene of the accident and/or never attempted to seek aid for the victim.
6. Failure to heed traffic signs. Usually more than once prior to the fatal accident, the driver ran a red light and/or stop sign.
"7. Failure to heed warnings about reckless driving. In Pears v. State, for example, the court cited as proof of Pears' extreme indifference to life the fact that he continued driving after he had been warned by police officers not to drive because he was intoxicated. In other cases a police pursuit of the driver for earlier traffic violations was an implicit warning that the defendant's driving was dangerous.
"8. Prior record of driving offenses (drunk or reckless driving or both). The relevance of a defendant's prior record for reckless or intoxicated driving is, as United States v. Fleming pointed out, not to show a propensity to drive while drunk but 'to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others.'"
Application of these factors seems appropriate to determine whether evidence in a particular case meets the requisite state of mind, but we are mindful that no precise universal definition or exclusive criteria is appropriate. The comments to the Model Penal Code declare that "recklessness" must be of such an extreme nature that it demonstrates an indifference to human life similar to that held by one who commits murder purposely or knowingly, but precise definition is impossible.
"The significance of purpose of knowledge as a standard of culpability is that, cases of provocation or other mitigation apart, purposeful or knowing homicide demonstrates precisely such indifference to the value of human life. Whether recklessness is so extreme that it demonstrates similar indifference is not a question, it is submitted, that can be further clarified. It must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter." A.L.I., Model Penal Code & Commentaries Part II section 210.2, Comment. 4, pp. 21-22 (1980).
Many of the factors cited as relevant to the requisite state of mind in similar prosecutions beyond Kansas are present here. Viewing the evidence in the light most favorable to the prosecution, our examination of the record shows:
(i) The State presented evidence of intoxication, both the consumption of beer at the club, but the later consumption of alcohol and use of crack cocaine;
(ii) The State presented evidence of nonfatal collisions shortly before the fatal collision, specifically the collision with two parked vehicles;
(iii) The State presented evidence of speeding at the time of the fatal collision, specifically that Doub's vehicle was moving "tremendously faster" than the vehicle struck;
(iv) The State presented evidence of driving on the wrong side of the road when one of the parked vehicles was hit;
(v) The State presented evidence of leaving the scene of all incidents, both with parked vehicles and the vehicle containing Smith; moreover, Doub did not attempt to render aid to Smith but rather chose to flee to avoid criminal liability;
(vi) The State presented evidence of residents near the parked vehicles shouting at Doub to stop, but Doub failed to heed these warnings.
Doub argues that his conduct was not even sufficiently egregious to constitute vehicular homicide, citing State v. Krovvidi, 58 P.3d 687 (2002), which reversed a conviction for vehicular homicide. The following language defines the crime of vehicular homicide, which is quite different from the language defining depraved heart murder:
"Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances."
The facts in Krovvidi, however, differed greatly from those before us. In Krovvidi, the State pointed exclusively to inattentive driving and the fact that the driver drove through a red light as factors showing conduct that rose to the level of culpability required under the vehicular homicide statute. Here, the facts are far more egregious. Moreover, depraved heart murder requires an entirely different level of culpability from that required for vehicular homicide. The following language from Krovvidi is instructive:
"In this case, there are no aggravating factors present. Krovvidi had not been drinking and was not under the influence of any drug, both factors which may provide the additional evidence to establish a material deviation. None of the passengers in his vehicle warned him as he was about to enter the intersection; none were concerned that his driving appeared reckless or that he was accelerating or speeding as he approached the intersection. Krovvidi was not speeding and proceeded through the intersection thinking his light was green. Absent additional aggravating factors, we conclude that his conduct does not amount to the material deviation required under the provisions [of]."
In contrast to Krovvidi, Doub had been drinking, was undoubtedly under the influence of crack cocaine, ignored commands to stop, was speeding at least by comparison if not illegally, and otherwise exhibited additional factors of recklessness. Considering the presence of many of those factors significant to other courts, we are convinced that a rational factfinder could have found Doub guilty of depraved heart second-degree murder beyond a reasonable doubt. The evidence against Doub is particularly damning considering that (a) he admits that his driving was preceded by drinking; (b) he admits that he struck two parked cars and ignored commands to stop because he was concerned that he had been drinking; (c) he then consumed additional alcohol and used crack cocaine; (d) he then resumed driving and caused a fatal collision, due in part to excessive speed; (e) he failed to render aid to the victims; and (f) he fled the scene in order to avoid criminal liability. We conclude that these facts clearly demonstrate an extreme indifference to human life.
You Decide: Corporate Murder
In 1983, an employee at Pyro Science Development Corporation, a fireworks manufacturer, plugged a fan into an electric outlet, generating sparks that caused a fire and explosion, killing one plant employee and injuring several others. Cornellier was director of operations at the plant and was charged and convicted of homicide by reckless conduct. Reckless conduct is defined under Wisconsin law as an act that creates a “situation of unreasonable risk and high probability of death . . . and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating injury.” Cornellier was allegedly manufacturing fireworks without a permit, in a factory that did not meet safety requirements. Three weeks prior to the explosion, Cornellier had been convicted of six violations of safety ordinances at a nearby plant and was advised that there were “high risks” of danger at the plant at which the accident occurred.
Following the explosion, the U.S. Department of Labor found nine separate violations of federal safety standards at the plant, including a lack of adequate precautions against the ignition of flammable vapors, the failure to provide a safe avenue of escape from the building, a mishandling of explosive materials in a fashion hazardous to life, and a failure to protect employees from explosion and fire. The Wisconsin court stressed that gross negligence could result from a failure to fulfill a duty to safeguard workers, as well as from an affirmative act. Judge Eich stressed that Cornellier’s failure to provide safe storage of explosive materials and a safe electrical system substantially contributed to producing the employee’s death. Can Cornellier be held criminally liable for a failure to act to correct the safety hazards at the plant? See Cornellier v. Black, 425 N.W.2d 21 (Wis. Ct. App. 1988).
Cornellier v. Black, 425 N.W.2d 21 (Wisc. App. 1988).
Homicide by reckless conduct is defined by sec. 940.06(2), Stats., as "an act which creates a situation of unreasonable risk and high probability of death . . . and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury." The statute also provides that the definition is to be understood as embracing "all of the elements of what was heretofore known as gross negligence in the criminal law of Wisconsin."
In addition to describing how the fire and explosion occurred, and how it caused Whitt's death, the complaint alleges the following facts: (1) Cornellier controlled Pyro Corporation and ran the day-to-day operations at the Milton plant; (2) he was aware that Pyro was engaged in manufacturing fireworks without a permit in a structure that did not meet state and local safety requirements, and that, as a result, the manufacturing operations were "illegal"; (3) less than three weeks before the fatal fire and explosion, Cornellier was convicted of six violations of safety ordinances in connection with the manufacture of fireworks at a nearby Milton plant—including storing more than 500 pounds of explosives in a building and manufacturing fireworks in an open frame structure; (4) sometime before the explosion, Cornellier was advised by a business associate of safety concerns at the plant—concerns which had been described by another associate as "a disaster, bags of chemicals left open, everything was a mess, it was very apparent . . . that the risks were very high"; and (5), following the explosion and fire, the United States Department of Labor reported nine separate violations of federal safety standards at the plant, including lack of adequate precautions against ignition of flammable vapors, lack of a safe means of escape from the building, mishandling of explosive materials in a manner hazardous to life, failure to implement safety practices to protect employees from explosion and fire, and generally hazardous and unsafe equipment and wiring throughout the building.
As a general rule, "[t]he requirement of an overt act . . . is not inherently necessary for criminal liability. . . . Omissions are as capable as producing consequences as overt acts." The essence of criminal conduct is the requirement of a wrongful 'act.' This element, however, is satisfied by overt acts, as well as omissions to act where there is a legal duty to act." It is just as much an "act" to deliberately or recklessly refrain from performing a known legal duty as it is to negligently perform that duty. The court concluded, therefore, that the statute, impliedly, if not directly, acknowledges that the crime of reckless homicide may be committed by omission, as well as commission.
The allegations permit the reasonable inference that Cornellier was aware of the multitude of extremely dangerous conditions at the Milton plant prior to, and on the date of, the fire and explosion, and that he did nothing to correct those conditions or safeguard his employees from the known dangers. Similarly, one may infer from the complaint that Cornellier's failure to provide safe storage of explosive materials and a safe electrical system was a substantial factor in causing the explosion—that is, that it was "a factor actually operating and which had substantial effect in producing the death as a natural result" (text taken directly from judgment of the court).