Chapter Eight by 9reMKFB


									                                      Chapter Nine

                              Purpose to Kill Murder
      Murder is the most basic crime of all, and probably the most ancient. It would also
seem to be one of the easiest to define. Yet murder and its lesser partner in crime,
manslaughter, are among the most complex offenses in Anglo American law. Reliably
distinguishing between different types and severity of criminal homicide has long challenged
law makers, law interpreters and law students.
      American jurisdictions generally distinguish between at least two kinds of criminal
homicide: murder and manslaughter. Within each of these categories lie a number of
subcategories distinguished by different forms of mens rea. Many rest on doctrines that date
back centuries, with the richness and ambiguity that such a long legal history usually brings.
Adding to analytic interest, the legal stakes for proper categorization of homicide are very
high. Depending on whether murder or manslaughter --and what kind --can make the
difference between a defendant’s life and death, or between a long prison sentence and a
much shorter one.
      The law of murder and manslaughter raises questions of both moral responsibility and
legal process. What criteria should we use to grade the severity of criminal homicides? How
much of this grading should be done by rule and how much should be left to the discretion of
decision makers, according to the facts of each case?
      Criminal homicides divide into three large groups according to the core mens rea
involved: (1) intentional killings, i.e. those involving purpose to kill or purpose to do great
bodily harm; (2) unintentional killings, those involving a reckless or negligent mens rea; and
(3) felony murder and associated doctrines, in which the commission of certain felonies
causes death. This chapter focuses a subset of intentional killings: murder based on proof of
purpose to kill.
      Before proceeding, I should explain why the discussion of murder in particular
organizes according to mens rea and not degrees of offense. Within the category of murder,
jurisdictions commonly distinguish between first and second and sometimes third degrees.
These degrees set different levels of punishment, making them very important in practice.
But to understand how murder law works, we need to understand differences in mens rea
forms. To illustrate, in many states, first-degree murder may be based on either premeditated
murder or felony murder. Premeditated murder involves premeditation and purpose to kill;
felony murder requires proof of a death caused in the commission of a designated felony
such as rape or robbery; the only mens rea required is for the underlying felony. The first
step to determining the degree of murder is determining what kind of murder (according to
mens rea) might be charged and proven.

A Brief History of Purpose to Kill Murder
     We need a little history to understand the modern law of murder. At English common
law, murder was a killing committed with malice aforethought and was always a capital

     offense. Defendants convicted of murder were hung unless pardoned by the king. The
     origins and exact meaning of malice aforethought, or malice prepens as it was also called,
     are today somewhat murky. Legal historians suggest that its original meaning probably
     included a notion that the killing was intentional and deliberate, involving some degree of
     calculation. Such murder contrasts with voluntary manslaughter, a form of intentional
     homicide in which the defendant's resort to deadly force is quick and impassioned.1
            One of the first tasks of the new American states after the founding of the United
     States was to enact new criminal codes. The new American crimes were largely based on
     English law, but many legislators wanted to reform the "sanguinary" (bloody) nature of
     English crimes and punishments. In the field of murder, the most influential changes were
     undertaken by the Pennsylvania legislature in 1794, which created two degrees of murder,
     first-degree murders were punishable by death; second-degree murders were not. The
     Pennsylvania legislation designated premeditated murder as one forms of first degree
     murder. Many states followed Pennsylvania's lead and by the middle of the 19th-century
     most states had placed premeditated murder at the top of their hierarchy of criminal offenses.
            The next stage of premeditation's history concerns its judicial interpretation. From
     early in the 19th-century until the present day, courts have struggled with the relationship
     between premeditation and purpose to kill. Some courts have interpreted premeditation
     strictly, holding that it represents an element clearly independent of purpose to kill. In such
     jurisdictions, premeditation requires proof that the defendant considered the moral
     consequences of homicide prior to its commission and courts play an important role
     overseeing jury determinations of premeditation. In other jurisdictions, appellate courts
     interpret premeditation broadly, granting juries significant discretion in deciding whether it
     may be found in cases where purpose to kill is also proven.
            Over last generation, premeditation has become a somewhat less important part of
     murder doctrine. Some jurisdictions have eliminated it entirely. In most states, premeditation
     survives as one form of first-degree murder, but it no longer plays a critical role in
     distinguishing between capital and noncapital offenses. In reaction to a series of United
     States Supreme Court constitutional decisions in the 1970s, many American states enacted
     capital punishment schemes for murder in which specific aggravating facts must be proven
     in addition to other requirements of murder to qualify an offense for the death penalty. Such
     aggravating facts may include particular motives, the number or identity of victims, or other
     special harms. even with these changes, premeditation still matters, often determining the
     significant penalty difference between first and second degree murder.

     Premeditated Murder: Purpose to Kill & Premeditation
            The original language of the Pennsylvania murder statute is found in many American
     statutes to this day: "all murder, which shall be perpetrated by means of poison, or by lying

             This meaning of malice aforethought is at odds with other traditional forms of murder, however. For
example, at common law murder included a killing that occurred during the course of a felony (felony murder) and a
killing caused by the great recklessness of a defendant (depraved toward murder). We will consider these forms of
murder in subsequent chapters.

    in wait, or by any other kind of willful, deliberate, and premeditated killing... shall be murder
    in the first-degree."2 Most legal attention focuses on the last of these phrases, the
    requirement that the killing be "willful, deliberate, and premeditated." Cases of
    administration of poison or murder by lying in wait are not that common, although they do
    provide good examples of what early legislators viewed as premeditated killings.
           The statutory premeditation language appears to set out three distinct three mens rea
    elements: willful, deliberate, and premeditated, but I will argue that in practice there are but
    two: purpose to kill and premeditation.
           "Willful” is a commonly used (though not often well defined) mens rea, that in this
    context probably stands for purpose to kill. I say probably because courts rarely address the
    word specifically in their considerations of mens rea. Instead judges often speak of the
    "specific intent" required, by which they usually mean purpose to kill. The word "deliberate"
    receives more judicial attention, but the word can have several different meanings.
    Deliberate may mean purposeful, as in purpose to kill. Or it may refer to deliberation,
    referring to defendant's contemplation of homicide. The former meaning is already covered
    by purpose to kill and the latter substantially overlaps with premeditation's concerns about
    timing and reflection. As a result, I think it simpler and clearer to speak of just two forms of
    mens rea: (1) purpose to kill and (2) premeditation.

    Purpose to Kill
           In jurisdictions that recognize premeditated murder, a prerequisite for conviction is
    that the offender have acted with purpose to kill, that is, with the conscious object to end the
    life of the victim. This is in addition to any requirement concerning premeditation.
           It makes sense to begin the analysis of premeditated murder with purpose to kill for a
    number of reasons. Of the two mens rea forms, purpose to kill is usually easier to resolve. If
    purpose to kill is lacking, we can skip premeditation and move to consider unintentional
    forms of homicide. Finally, by taking up purpose to kill first, we will see more clearly the
    relationship between premeditation and purpose to kill.
           As a legal concept, purpose to kill is straightforward. Did the defendant aim to end the
    life of the victim? Was the death intentional or did the offender mean only to hurt or scare
    the victim? Or perhaps the defendant intended no harm at all, and the injury was entirely
    accidental. In determining purpose to kill, the main challenges involve evidence and
    articulation. What facts demonstrate that the defendant did -- or did not -- act with purpose
    to kill? Often this form of mens rea is inferred from the nature of the assault, the likelihood
    that an attack of this kind would produce death. This includes an examination of the
    surrounding circumstances concerning motive and the dangerousness of the attack.
           Stephen is an angry young man with reputation for settling disputes violently.
           He is especially touchy when behind the wheel of his large SUV. When another
           vehicle cuts him off in traffic, Stephen gives the other Driver the finger and
           forces the Driver's car off the road. Stephen jumps out of his SUV and screams
           profanities at the Driver. The Driver responds with his own insults. Stephen

          E.g., California Penal Code sec 189; addition of torture, explosive device etc.

      pulls out a gun from his waistband and fires six shots at the Driver, striking him
      twice in the head and four times in the torso. The Driver dies before medical
      assistance can arrive.

This is not a hard case with respect to purpose to kill. The circumstances indicate that
Stephen was very angry with the Driver because of the incident on the road and after
expressing his feelings in gestures and words, and being further infuriated by the Driver’s
responsive insults, Stephen expressed his rage in ultimate violence, using a deadly weapon
in a deadly fashion. He shot at vital areas of the Driver's body -- head and torso -- in order to
accomplish maximum damage and therefore to kill. Once Stephen began shooting, all of the
evidence suggests that it was his conscious object to end the life of the (in his view)
offending Driver.

      Tobias is a brooding, even sullen 17-year-old who rarely responds to the harsh
      criticisms and taunts of his Father, but feels them deeply nevertheless. When on a
      family trip the car suffers a flat tire, the Father orders Tobias to change it, even
      though Tobias is the least mechanically adept member of the family. As Tobias
      tries to figure out how to use the tire iron to loosen the wheel nuts, Father calls
      him hopeless idiot, a wimp and a druggie. (Tobias occasionally smokes
      marijuana.) As Father turns away, Tobias takes the tire iron and, with a baseball
      swing, strikes Father with it once in the back of the head. Father drops to the
      ground, unconscious. Within a day Father is dead of his head injury.

This is a harder case. Arguing that Tobias acted with purpose to kill, we might note that he
intentionally uses a heavy iron club, the tire iron, against a vital organ -- the head. Given the
history between Tobias and Father, and Father's taunts, it may be that Tobias was so angry
that he wished to kill Father, and chose an efficient method to do so. But the defense can
raise many questions here. Did Tobias understand the dangerousness of his action? Did he
have any idea of how much he could hurt his father with the tire iron? The defense might
argue that he meant only to scare or hurt his father, but that with a single, unlucky blow --
remember Tobias's apparent lack of physical skills--there is no proof beyond a reasonable
doubt of a conscious object to kill.

      While statutory definitions of premeditation are basically the same in all jurisdictions,
different judicial interpretations give premeditation significantly different meanings. Why?
Why do appellate courts read the same language in such different ways? The answer has to
do with disagreements about what how to grade murders, the value of jury discretion, proof
problems and the import of statutory wording.
      Premeditation is supposed to distinguish the very worst murders from other murders.
The idea is that well considered, cold-blooded killings, represent a more heinous moral
choice and signify a more dangerous offender, than do other killings. Popular images of the

     worst killers such as the hired hitman or serial killer certainly fit this picture. Appellate
     courts are well aware though, that sometimes heinousness does not track reflection. Some of
     the worst killings do not provide much evidence of defendant's lane of consequences. A
     desire to include such killings nevertheless within the category of the worst form of murder
     encourages an expansive reading of premeditation.
            Also implicated in premeditation’s definition is the question of jury guidance. Courts
     that believe that juries generally can be trusted to decide relative offense severity based on
     the particular facts presented are more likely to leave the nuances of premeditation to jury
     discretion. Such judges may believe juries better situated to make the severity assessment on
     a case-by-case basis rather than try to capture all of the complexities in a single rule. Other
     courts worry that without clear legal direction, juries may fall victim to bias, especially
     unconscious bias. Jurors may judge certain defendants more harshly than others based on
     improper considerations such as the race or gender of the defendant or victim. Such courts
     are likely to prefer strict rules for premeditation, whose application appellate courts can then
            The overall statutory scheme of murder must be considered. In many jurisdictions, in
     cases where purpose to kill is evident, the difference between a first and second degree
     murder conviction will depend on proof of premeditation. This indicates that the Legislature
     meant premeditation to be the deciding factor, which indicates that it must mean something
     different than purpose to kill. Obviously this favors a strict interpretation of premeditation.
            Finally, a factor which may influence some judges is that a strict interpretation of
     premeditation involves proof of mental processes -- reflection, calculation -- that are
     essentially internal and can only be inferred from observable conduct. In general we want to
     avoid forms of mens rea that require special forms of evidence.

            The Strict Approach: Proof of Reflection
            Courts that take a strict view of premeditation understand it as the defendant's pre-
     meditation or thinking about killing prior to the actual commission of the deed.3 Just as the
     most important decisions in life are generally the product of careful thought over time,
     involving the deliberate weighing of advantages and disadvantages, so premeditation
     suggests that the very worst decisions (most culpable, most dangerous) are those that result
     from calculation or reflection. Where the person has taken the time and care to weigh the
     consequences of killing but nevertheless proceeds with the deed, the person demonstrates the
     highest degree of moral culpability and threat. As a shorthand, we may think of this kind of
     premeditation as assessing the defendant's degree of internal calculation or reflection on the
     act of homicide.
            A significant problem with the strict approach to premeditation is that it seeks to
     assess an internal mental process. The law distinguishes killings according to how the killer
     decided to kill. Unlike most forms of mens rea, this test does suggest the need for mind
     reading. To avoid demanding the impossible of prosecutors and decision-makers, courts

            E.g., State v. Guthrie, 461 S.E.2d 163 (W.Va. 1995); People v Anderson, 447 P.2d 942 (Cal. 1968);
People v. Bingham

have suggested particular markers of premeditation. These fall into three general categories:
timing/planning, relationship/motive and the manner of killing/coolness of defendant's

       One indicator of premeditation is a significant gap in time between an initial decision
to kill and the actual killing. This lapse in time tends to indicate a period of reflection or
calculation. A number of ambiguities lurk here, however. Initially, we have the problem of
determining when an individual might first have contemplated killing. Sometimes there is a
particular precipitating event which may start the timing sequence, but in many cases a
decision to kill, like other momentous decisions, is the product of a number of different
influences impossible to time precisely. Additionally, even if we know the chronology of
events, a gap in time between initial thought and action does not by itself establish that the
intervening time was used for homicidal reflection. About the most that we can say with
respect to timing is that the more time that elapsed between a decision to kill and the killing,
the more that premeditation is indicated. The reverse will also be true.
       A much stronger indication of premeditation, indeed, an activity virtually synonymous
with premeditation, is homicidal planning. Recall the two specific examples of premeditated
murder included in the original Pennsylvania statute: administration of poison and lying in
wait. Both methods of homicide require planning. Planning is a form of calculation and
reflection on the homicide and we easily presume involves a weighing of the consequences
of the deed.
       The other advantage of planning as a premeditation determinant is that planning often
involves observable activity such as the purchase of a weapon, scouting of a location for
attack, or preparations for cover-up and escape. Concrete evidence of planning thus obviates
the need for decision-makers to make difficult inferences about internal mental processes.

      The most misunderstood premeditation factor is the assessment of motive according to
the prior relationship between killer and victim. Again keep in mind our object: determining
whether the defendant reflected on homicide prior to killing. Analyzing the prior relationship
between killer and victim provides potential insight into motive which in turn may tell us
about homicidal reflection. Here is the key point: some motives support reflection; others do
not. Establishing that the defendant had a motive to kill is never enough by itself; all
purposeful homicides have a motive, however senseless or trivial it may seem to others.
What matters is what the defendant's particular motive says about reflectiveness. Killing for
money is a motive that demonstrates reflectiveness because it suggests a cold-blooded, well
considered decision. By contrast, killing to avenge an immediate insult to honor is a motive
generally inconsistent with prior reflection on homicide; it suggests a hot blooded,
impulsive, poorly considered action.

      Manner of Killing/Coolness of Defendant
      How the offender kills may also speak to reflectiveness. The sniper's single fatal shot

to the head or heart indicates planning and therefore premeditation. Notice that it is also
indicative of coolness in execution -- and the emotional tone that we associate with a "cold-
blooded." By contrast, a fatal beating in which the assailant uses whatever weapons are
available at the scene -- a chair, shoes, fists -- and attacks in a frenzy, suggests an
impassioned, impulsive homicide, not one that has been previously reflected upon.
      An important caution: manner of killing often provides important evidence on both
premeditation and purpose to kill, but the two mens rea's should be separately analyzed. For
example, the careful efficiency of the sniper indicates that he acted with a clear aim to end
the victim's life -- a purpose to kill. The same evidence, as noted above, indicates calculation
and reflection -- premeditation. However, in the case of the fatal assailant, the same evidence
may point in different directions on these two elements. The fury of the assault may support
purpose to kill, but would not generally point toward premeditation.

      Sleepy has been working low level jobs in the drug trade for years. Then he gets
      his break -- representing a drug wholesaler in the sale of two kilos of cocaine to a
      major street dealer, Roscoe. Roscoe gives Sleepy cash in exchange for the cocaine
      in an apartment controlled by Roscoe. Leaving the apartment building, Sleepy is
      robbed at gunpoint of the cash by Roscoe's men, who tell him they're acting on
      Roscoe's orders. Two weeks later, Sleepy happens to see Roscoe through the
      window of a downtown restaurant, sitting with his girlfriend. Sleepy enters the
      restaurant, pulls out the gun he has been carrying with him since the robbery,
      and shoots Roscoe three times in the head, killing him. Sleepy is then arrested.
      On these facts, what are the chances of Sleepy being convicted of premeditated

       The chances look pretty good, which is not to say that there aren't issues to discuss.
Much depends on how the evidence is interpreted. For example, on the question of
timing/planning, the prosecution is likely to argue that Sleepy must have been contemplating
homicidal retaliation for the robbery since the moment that he learned that Roscoe was
behind it. He is carrying a gun, suggesting perhaps he is preparing himself for this offense.
The defense will contend this is all speculation. All that is actually known is that after being
robbed at gunpoint, Sleepy decided to arm himself and, when he happened to see Roscoe,
decided to confront him. From the defense perspective, the time gap to be assessed is that
between pulling out the gun and shooting, or at most, spotting Roscoe in the restaurant and
shooting; under neither scenario is there substantial opportunity for planning or weighing of
       The relationship between these men -- rivals in the drug trade -- would generally
support a cold-blooded killing. The prosecution would argue that this is murder for business
purposes, suggesting a well considered, self interested deed. The defense would try to make
this appear more personal and therefore more emotional and spontaneous. In terms of
manner of killing, the prosecution would contend this was virtually execution style, highly
efficient and again, cold-blooded. The defense would say that when the opportunity
appeared, Sleepy took advantage. The method says nothing particular about prior reflection.

     Bottom line: should the jury be so inclined, it may find reasonable doubt as to premeditation,
     but I would think the more likely result would be a finding of premeditation, based on the
     cold-blooded feel of this drug trade homicide.

            Recall the previous case in which Stephen, the prickly driver of a SUV, after
            being cut off, forces another Driver off the road, gets out of his own vehicle and
            shoots the Driver dead. Purpose to kill was clear in this case, but what about
            premeditation under the strict approach?

           Here the defense should have the advantage in a premeditation argument. The events
     leading to death occurred rapidly, and without any prior notice. The homicide was not
     planned -- unless additional facts can be adduced that Stephen carried a gun in anticipation
     of such an incident. The relationship between Shooter and Victim was nonexistent prior to
     the incident, and the motive for the shooting -- road rage -- indicates a hot tempered,
     impulsive homicide rather than one that was carefully reflected upon before commission.
     The manner of killing is efficient, and arguably cold-blooded, but it is also perfectly
     consistent with a hot blooded and unreflective homicide. Overall, this killing does not look
     premeditated if we take the notion of prior reflection seriously.

           The Broad Approach: Jury Discretion
           As previously noted, many appellate courts eschew strict interpretations of
     premeditation, preferring to give factfinders wide discretion in its determination.4 In these
     jurisdictions, premeditation is broadly defined, or more accurately, left broadly undefined.
     Appellate courts typically say more about what is not required, than what is. As long as
     purpose to kill is evident, such courts are not inclined to second-guess juries on
           In these jurisdictions, premeditation here does not require a substantial time between
     decision and action. We hear the prosecutorial cliché taken from Commonwealth v. Drum
     that "no time is too short for a wicked man to frame in his mind this game of murder."5
     Indeed, jury instructions may indicate that "no appreciable time" is required to premeditate.
     Appellate courts hold that premeditation does not require a cool emotional state, nor
     evidence of planning or any other specific indicator of reflectiveness. In fact, in such
     jurisdictions there is virtually no judicial review of premeditation distinct from purpose to
           Under the broad approach, it is a legitimate question whether premeditation actually
     disappears as a form of mens rea distinct from purpose to kill. This seems to be the case on
     appeal: assuming clear proof of purpose to kill at trial, appellate courts simply will not
     overturn jury determinations of premeditation. What can be argued at trial is a potentially
     different matter, however. Here we need to distinguish facts that may support premeditation
            E.g., Com. v. Carroll, 194 A.2d 911 (Pa. 1963); Young v. State, 428 So.2d 155, 158 (Ala. Crim. App.
1982) (check).
            58 Pa 9, 16, quoted in Carroll, 398; full quote?

with the jury of chess decision about whether the defendant actually did premeditate.
       As long as the law distinguishes different levels of murder according to the presence or
absence of premeditation, the jury must determine whether the prosecution has proven this
mens rea beyond a reasonable doubt. The prosecution may rely on jury instructions
suggesting the rapidity with which premeditation may occur, but defense counsel can always
argue that defendant did not premeditate. Skilled defense counsel may still maintain that
factors such as timing/planning, motive and manner of killing provide insight into homicidal
reflection or its lack. Remember, even the broadest appellate interpretation of premeditation
does not hold that premeditation must occur quickly, only that it may.

      Return once more to the case of Stephen, road rage killer.

       If convicted of premeditated murder at trial, Stephen would have no hope of
overturning the premeditation finding on appeal. With purpose to kill clear, the appellate
court can surmise that the jury may have found that Stephen reflected on killing at any time
from the moment of being cut off up to the instant of shooting. Perhaps he began reflection
when he forced the other car off the road, or when he got out of his own vehicle, or in the
moments between removing his gun from his waistband and shooting.
       What about the same case at trial? At trial the prosecution can make the same
arguments about rapid premeditation, which may prove convincing. Certainly Stephen is not
a very sympathetic defendant. It's also true though, that the defense at trial may still argue
that the swiftness of events and hot blooded nature of the killing suggest that Stephen did not
in fact reflect upon the consequences of killing prior to his shooting the driver. While the
broad approach holds that premeditation may occur under these facts, it does not mandate
that result. In practice, the jury has essentially unreviewable discretion on premeditation

Purpose to Kill/Do Great Bodily Injury Murder (Without Premeditation)
       In most American jurisdictions that recognize premeditation, if a killing is committed
with purpose to kill but without premeditation, it will generally be classified as a second-
degree murder. We need not further explore purpose to kill analysis because this has already
been covered in premeditated murder. The doctrines of provocation and imperfect self-
defense that might knock such purpose to kill murders down to voluntary manslaughter, will
be covered in subsequent chapters.
      There is one additional form of intentional murder that deserves mention here: murder
based on purpose to do great bodily harm. Great bodily harm is harm involving significant
physical injury, the sort of injury that requires immediate medical treatment to avoid death or
permanent injury.
      In most jurisdictions, an act taken with purpose to do great bodily harm that produces
death will result in a second-degree murder conviction. This can occur through several
different ways. Some jurisdictions have murder statutes that list purpose to do great bodily
harm as an alternative mens rea form to purpose to kill, sufficient for second-degree murder.
In other jurisdictions, juries may be instructed that they may infer purpose to kill from acts

demonstrating purpose to do great bodily harm. In practice, this instruction often achieves
much the same end. Finally, we will see that all jurisdictions recognize a form of murder
based on extreme recklessness known as depraved heart murder, which will encompass
actions done with purpose to do great bodily harm that cause death.

                                        Question Tree
                                  Premeditated Murder

In a jurisdiction recognizing premeditated murder,
(1) Did the defendant act with purpose to end the life of the victim? If no, consider
possible charges of unintentional homicide or purpose to do great bodily harm murder. If
(2) Did the defendant act with premeditation, that is, following some amount of
reflection on the decision to kill?
(a) In a jurisdiction that takes a strict approach to premeditation, did the defendant
reflect on (weigh the consequences of) killing as demonstrated by the following kinds of
       (i) evidence of planning or a significant gap in time between an decision to
                  kill and the killing which may show prior reflection;
       (ii) the particular motive for killing indicates prior reflection;
       (iii) the manner of killing indicates prior reflection.
If yes: guilty of premeditated murder. If no, consider other forms of purpose to kill homicide.
(b) In a jurisdiction that interprets premeditation broadly, is there evidence from which
the jury might determine that prior to the commission of the offense, even immediately
prior, the defendant reflected on killing?
If yes and the case is on appeal, the conviction of premeditated murder will be affirmed. If
yes and the case is being tried to a jury, conviction for premeditated murder will follow if the
jury believes that the defendant did at least briefly reflect on the homicide. If the jury is not
persuaded that reflection actually occurred, no conviction on premeditated murder; consider
lesser forms of purpose to kill homicide.


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