Crimes Against the Person • Crimes against the person include all crimes that. . .well, are against people directly. • These include: (1) homicide (including murder, manslaughter); (2) assault and battery; (3) rape; (4) kidnapping; and (5) stalking. • I’ll also go into cyberstalking (not in the outline, but we’ll add notes).
Homicide • Generally the taking of the life of another. From Latin homo (man) and cide (to cut/kill). • The two principal kinds of homicide are murder and manslaughter. Additional forms of homicide exist by statute in some states. • Many states have created the crime of vehicular homicide (an unintentional death caused by the driver of a car).
Homicide • What constitutes “the taking of life”? • D shoots X, a pregnant woman. The bullet goes into X's uterus and instantly kills V, a fetus which has not yet started the birth process. Is this murder?
Homicide: • ANSWER FOR OUTLINE: Not in most states. Need life to begin, which is birth. This is the traditional approach. • Some states have taken different approaches to this…
Homicide • IL: Created a separate law to deal with this: Fetal homicide. • A person commits the offense of intentional homicide of an unborn child if, in performing acts which cause the death of an unborn child, he without lawful justification: (1) either intended to cause the death of or do great bodily harm to the pregnant woman or her unborn child or knew that such acts would cause death or great bodily harm to the pregnant woman or her unborn child; or (2) he knew that his acts created a strong probability of death or great bodily harm to the pregnant woman or her unborn child; and (3) he knew that the woman was pregnant. • (b) For purposes of this Section, (1) "unborn child" shall mean any individual of the human species from fertilization until birth, and (2) "person" shall not include the pregnant woman whose unborn child is killed.
Homicide • Other states treat the fetus as a person. California is one. • Scott/Lacey Peterson murder case (2002). • Lacey (8 mos. Pregnant with Conner) disappeared 12/24/02. Scott pleads for her return. • Family loses trust after affair with Amber Frey surfaces. Met her 11/02. She sees him on TV, agreed to tape him/help police. • Bodies of fetus/woman washed ashore 4/03. Scott is arrested with $15,000, camping equip, gun, 4 cell phones and his brother’s ID. Changed appearance.
Homicide • Under CA law, Peterson charged with two homicides. • "If both the woman and the child were killed and we can prove the child was killed due to the actions of the perpetrator, then we charge both," said Stanislaus County Assistant District Attorney Carol Shipley. • Jury bought it; now Peterson is on death row in CA. • Second homicide critical: w/o it, no death row.
Homicide • Under federal law, a “child in utero” is a legal victim if killed as the result of a federal crime (like the OK City Bombing, 1995). • Unborn Victims of Violence Act of 2004 (Laci and Conner’s Law) • Interesting given Roe v. Wade and the right to choose.
Homicide • What if the infant is born alive, and then dies. Is it murder then? • ANSWER: Yep. Traditionally this is when life begins. In IL, for example, this is when you go from fetal homicide to homicide. • Jennifer Sotomayor (2003), gave birth in bathroom, put dead infant in plastic bag and hid it in a box. • Question in trial: Born alive and suffocated, or stillborn?
Homicide • Judge John Scotillo of Rolling Meadows (right) concluded from medical testimony that infant born alive and suffocated. • Felt she inadvertently caused death (was trying to stifle cries. • Guilty of involuntary manslaughter, got 4 years probation. • See also “prom mom” murder case; Melissa Drexler pled guilty to agg. manslaughter 10/98, sentenced to 15 years, served 3 until 2001 (was 23 when released).
Homicide • So we know when life begins for purposes of homicide. . .but what about when life ends? • D, a physician, concludes that V is "brain dead," and thus removes V's heart to use it in an organ transplant. Is this murder? • Point: No. Brain death equals death. Definition of when life ends here.
Homicide: Murder • Murder: There is no simple definition of “murder” that is sufficient to distinguish killings that are murder from killings that are not. • At the most general level, murder is defined as the unlawful killing of another person. • NIO: Murder is done with “malice aforethought.” Means act done with (1) intent to kill; (2) intent to inflict great injury; (3) extreme recklessness; or (4) intent to commit a felony.
Homicide: 1st Degree Murder • First degree murder: In most states, this is killing that is "premeditated and deliberate." • Mensrea: Intentional. . .but with added “premeditation.” • “Intentional”: Purposeful or knowing. • Premeditation: Thought/planning before. • Question: What shows premeditation?
Homicide: 1st Degree Murder • D hates his wife. Before killing her, he writes out an elaborate plan on how he is going to carry it out. He kills her, and the police find the written plan, which he has followed to the letter. First-degree murder? • Point: Yes. (1) Planningactivity denotes premeditation. • Peterson: Told Frey his wife was dead. . .planning (?)
Homicide: 1st Degree Murder • What if in the above scenario the police also find out that D stood to inherit millions from his wife if she was dead. Does this make any difference? • Point: Yes. (2) Motive is a second factor that can denote premeditation. • Scott Peterson: Prosecutor argued affairs, debt as motive.
Homicide: 1st Degree Murder • Example: Kitty Genovese murder. • On the stand, Winston Mosley admitted he went out and “intended to kill a woman.” • Planning: Disguise. • Convicted of 1st degree murder.
Homicide: 1st Degree Murder • D is arrested after her husband is killed. Police find the body laying in bed, with a sleepmask on, earplugs in his ears. There is no sign of struggle. He has three bullet wounds in the side of his head. What can the police infer about his killing? • Point: That this may have been premeditated. . .it’s a (3) manner of killing so precise that it suggests there was premeditation.
Homicide: 1st Degree Murder • Another example: Murder of Michael Lentz in 2006. • Daughter accused of killing father. She says it was unintentional. • Precise manner of killing? See story and a second story. Punishment?
Homicide: 2nd Degree Murder • Second degree murder: Murders that are not premeditated (don’t show (1) planning; (2) motive; (3) precise manner of killing). • There are basically three different types of 2nd Degree Murder. . .
Homicide: 2nd Degree Murder • D goes to V’s house to confront him about V’s plans to marry his daughter. He brings a gun for protection; (V has a reputation for being violent). After a long and heated argument, V says to D “I’ll marry your daughter whether you like it or not!” Angered, D pulls his gun and shoots V dead on the spot. • Point: Murder here is (1) intentional, but it’s spontaneous, quick. . no premeditation. 2nd degree.
Homicide: 2nd Degree Murder • D is angry at V for reneging on a debt. D beats V with brass knuckles, intending only to break V's nose and jaw, and to knock out most of his teeth. If V unexpectedly dies, is this murder? • Point: (2) Intent to inflict grievous bodily injury. Second degree.
Homicide: 2nd Degree Murder • D punches V in the face, intending merely to knock V down. V strikes his head while falling, and dies. Murder? • Point: No. No intent to inflict grievous bodily injury. (Misdemeanor manslaughter though).
Homicide: 2nd Degree Murder • D sets fire to a building where he knows people are sleeping; he does not desire their death, but knows that there is a high risk of death. One inhabitant dies in the fire. Murder? • Point: Yes. (3) Reckless indifference to human life. Second degree. Plus, felony murder.
Homicide: 2nd Degree Murder • D fires a bullet into a passing passenger train, without any intent to kill any particular person. The bullet happens to strike and kill V, a passenger. Murder? • Point: Yes. Reckless indifference to human life. Second degree.
Homicide: 2nd Degree Murder • D, trying to escape from pursuing police, drives his car at 90 mph the wrong way down a one-way residential street that has a 25 mph speed limit. D hits V, a pedestrian. Murder? • Point: Yes. Reckless indifference to human life. Second degree.
Homicide: 2nd degree murder • Example: Music producer Phil Spector: Convicted of second degree murder of actress Lana Clarkson 4/09. See 1, 2, 3, 4. • Found in foyer of his home, shot in mouth/head. • Had history of drinking, threatening women with guns. Tried to argue it was suicide. Failed. • Premeditated? No. But reckless indifference to human life? Sure.
Homicide: 2nd Degree Murder • Recent example: DUI killing of ballerina Elena Shapiro (9/11/09). • Killed when her car struck by surgeon Raymond Cook. . .was drunk. • Charged with second degree murder: reckless indifference for human life. Driving 85 MPH when he hit her car.
1st or 2nd Degree Murder? • Look at the case of Commonwealth v. Carroll. . .is this 1st or 2nd degree murder?
Homicide: Felony Murder • Under the felony-murder rule, if D, while he is in the process of committing certain dangerous felonies, kills another (even accidentally), the killing is murder. In other words, intent to commit any of certain felonies (including robbery, rape, burglary, arson, and kidnapping) is sufficient to meet the mensrea requirement for murder. This is usually treated as a first degree murder. • NIO: Purpose of the rule?: Deter felons.
Felony Murder EXAMPLE: During a holdup by D, V, a storekeeper, has a fatal heart attack from the stress. ANSWER: Yep. Proximate cause and felony murder. Guilty. Remember the story of Larry Whitfield (right) of NC. . .scared elderly woman “to death” during break-in: felony murder. New one: Chicago officer crash (2010). Another with pics. Questions though re: this. Plus, foreseeable??
Homicide: Felony Murder • D, while carrying a loaded gun, decides to rob V, a pedestrian. While D is pointing his gun at V and demanding money, the gun accidentally goes off, and kills V. Murder? • Point: Guilty. Killing occurred during the commission of a dangerous felony. Even if an innocent bystander.
Homicide: Felony Murder • D passes a forged check (a felony) to V. V, a hemophiliac, gets a paper cut from the check. She bleeds to death because of it. Felony murder? • Point: No. . .this is not one of the dangerous felonies listed above. Doesn’t work. Not guilty.
Homicide: Felony Murder • D, after an argument with V, begins punching V over and over. He ends up beating the victim to death. There is no premeditation with this killing. Is it second-degree murder or felony murder when assault and battery are felonies? • Point: It’s second degree. Can’t have felony murder with assault and battery; murders all result from assaults and batteries, right? Not felony murder.
Homicide: Felony Murder • D goes to rob V, pulling a gun on her. V pulls a gun herself and gets off a shot in self-defense. Instead of hitting D, she hits bystander X. Is D guilty of felony murder? • Point: Courts split here. (1) CA: No. (2) Some. . .depends if the robber fired first shot. V D X
Homicide: Felony Murder • What if a second robber (X) dies, shot by the victim, a police officer, or another felon? Is this enough to trigger the felony-murder rule (against first robber, D)? • Point: No. Felony murder rule is there to protect innocents. • Point II: IL. . .not so much.
Homicide: Felony murder • Case of Kristian Branch (rt., 3/2010). Participates in robbery during which her partner was killed by the V. • She is charged with felony murder, even though partner was the person killed. • ILSC case (1998): Accomplice charged with felony murder when undercover cop shot partner. Upheld. • Zorn op/ed on this (3/21/2010).
Homicide: Felony Murder • NOTE: The felony-murder rule applies only to killings which occur "in the commission of" a felony. • D intends to rape V. In order to quiet her, he puts his hand over her mouth, thereby asphyxiating her. Is this enough to trigger the felony-murder rule? • Point: Killed before the felony. . .still felony murder (it’s could be a kidnapping too, technically).
Homicide: Felony Murder • What if D robs a bank and escapes (felony is over, right), and is running down the street. As he runs down the street, he drops his gun and it goes off, killing an innocent pedestrian. Felony-murder? • Point: Still in the commission of a felony. Yep. • An issue in the Chicago police officer case. . .
Homicide: Felony murder EXAMPLE OF THIS: “Johnson brothers” from AL in Reversal of Fortune. Actually the Tison (Raymond, Donald and Ricky) brothers from AZ. Broke father/friend out of prison, father/friend killed family who stopped to help them (M/D/2 year old boy/15 year old girl). Gun battle. Donald killed. Dad wounded, died in desert, others captured. Guilty of felony murder. USSC case: Decided they could be executed for this. Sentence changed to life in prison (were <20). Raymond Tison, Randy Greenawalt, Ricky Tison after they were captured.
Homicide: Manslaughter • NOTE: Two types of manslaughter generally: (1) voluntary, in which there generally is an intent to kill; (2) involuntary manslaughter, in which death is accidental.
Voluntary Manslaughter • Voluntary manslaughter: Most common kind, D kills in a "heat of passion," an extremely angry or disturbed state. Usually need four elements for this type of crime: • Reasonable provocation • D acted in the “heat of passion” • No time for a reasonable person to cool off • D not in fact cooled off
Voluntary Manslaughter • ELEMENT 1: Reasonableprovocation: D acted in response to a provocation that would have been sufficient to cause “a reasonable person” to lose his self control. • If this prong fails, 2nd degree murder. • Uncle Joey example. . .not about him, but rather the reasonable person in this situation. • What kinds of acts are a reasonable provocation?
VoluntaryManslaughter • V, a man, punches D, a man, because D has failed to pay back a debt. Is this adequate provocation if D kills V in a "heat of passion"? Is this a reasonable provocation? • Point: Usu. adequate provocation. OK. If D starts it? No. Assault? (What if V misses?) OK. • What if the attack isn’t very violent? A shove? Probably not. Needs to be pretty bad.
Voluntary Manslaughter • What if a husband finds his wife in bed with another man, and then kills his wife and her lover? Reasonable provocation? • Point: Yep. • What if, they are not married though? • Not necessarily. Depends on relationship. • What if this was a woman? Same?
Voluntary Manslaughter • How about mutual combat? What if the D and V get into a fight that they both start and participate in. Reasonable provocation? • Point: Yes. Mutual combat is enough. • If the D starts the fight though. . .no.
Voluntary manslaughter • What if the D, a father, comes home to find his wife raped and murdered? Reasonable provocation? • Point: Yes. A serious crime committed against a close relative of a defendant is enough. • Scenario in “Taken”? Yes. . .but should have cooled off. . .
Voluntary Manslaughter • Two questions to consider: • What about words? Can words spoken by the V constitute a reasonable provocation? • What is the “reasonable person” exactly? Shouldn’t the person’s makeup/background/viewpoint, etc. be the standard? • Read the case of Girouard v. State and others to test this.
Voluntary Manslaughter • Back to the outline: What about words alone? What if the V says to the D, "You know, you really are a spineless wuss." Is that enough? • Point: Nope. Not adequate provocation. Words usually not enough. • But aren’t certain words like a punch? Still doesn’t matter. Law here is saying you must control yourself.
Voluntary Manslaughter • What if the words contain information: "You know, I've been having an affair with your wife for the last six months. She's really good if you know what I mean, and we'd like you to give her a divorce so that we can get married." Enough? • Point: Adequate provocation. Words here embody an reasonable provocation. • What about expanding the idea of the “reasonable person”?. . .possible?