cdTOCtest

(coco) #1

HOMICIDEHOMICIDEHOMICIDEHOMICIDEHOMICIDE


(See also CAPITAL PUNISHMENT, COMPLIC-


ITY, DEFENSES,


INSANITY/DIMINISHED CAPACITY,


INTOXICATION, SELF-DEFENSE)


I. MURDER (N.J.S.A. 2C:11-3)


A. Types of Murder



  1. Purposeful Murder - actor purposely causes death
    or serious bodily injury resulting in death. N.J.S.A.
    2C:11-3a(1).

  2. Knowing Murder - actor knowingly causes death
    or serious bodily injury resulting in death. N.J.S.A.
    2C:11-3a(2).

  3. Felony Murder - actor, acting either alone or with
    others, is engaged in the commission of, or an attempt to
    commit, or flight after committing or attempting to
    commit robbery, sexual assault, arson, burglary,
    kidnapping or criminal escape, and in the course of such
    crime or of immediate flight therefrom, any person causes
    the death of a person other than one of the participants.
    N.J.S.A. 2C:11-3a(3).


The mental states required to convict for purposeful
murder and knowing murder are “equivalent expressions
of moral culpability.” State v. Cooper, 151 N.J. 326
(1997).


Where the evidence supports either purposeful or
knowing murder or felony murder, all should be charged
in the indictment and all should be charged to the jury.
The jury should be permitted to return verdicts on all
types of murder. In that way, the judge maximizes his
options at sentencing and avoids the risk of merger, for
example, of the underlying felony with the felony
murder, limiting his ability to give separate sentences for
the crimes. State v. Arriagas, 198 N.J. Super. 575 (App.
Div. 1985), aff’d, State v. Crisantos (Arriagas), 102 N.J.
265 (1986).


It is not a defense to purposeful or knowing murder
that the actor intended only to inflict serious bodily
injury and not death. State v. Gerald, 113 N.J. 40
(1988). The crime of non-capital serious bodily injury
murder exists under the Code. To convict a defendant of
purposeful or knowing non-capital serious bodily injury
murder, the prosecution must prove that it was
defendant’s conscious object to cause serious bodily


injury (purposeful) or that defendant knew that the
conduct was practically certain to cause serious bodily
injury (knowing), that defendant knew that the injury
created a substantial risk of death, and that it was highly
probable that death would result. State v. Cruz, 163 N.J.
403, 417-19 (2000).

Although a defendant may be guilty of murder if he
purposely or knowingly causes death or serious bodily
injury resulting in death, he may only be guilty of
attempted murder if he acts purposely and his intent is
to cause death. In other words, an actor cannot attempt
to cause death unless death is the conscious object of his
conduct. State v. Rhett, 127 N.J. 3 (1992).

In contrast to purposeful or knowing murder, felony
murder is a strict liability crime. State v. Feaster, 156 N.J.
1 (1998). To be guilty of felony murder, a defendant
need not have intended or contemplated the victim’s
death. State v. Cooper, 151 N.J. 326, 360 (1997). Felony
murder is a crime of “transferred intent,” based on the
intent to commit the underlying felony even though
there is no intent to kill. State v. Smith, 210 N.J. Super.
43, 50 (App. Div.), certif. denied, 105 N.J. 582 (1986).
As a result, there is no crime of attempted felony murder
because it is a self-contradiction. Felony murder is a
wholly unintended killing which results from the
commission of the underlying felony. A criminal
attempt, however, requires that the actor have the
purpose to cause the particular result. One cannot
“attempt” an unintended result. If the conduct was
intended to result in death, then the correct charge is
attempted murder. State v. Darby, 200 N.J. Super. 327
(App. Div. 1984), certif. denied, 101 N.J. 226 (1985).

When the predicate offense and the murder are
closely connected in point of time, place and causal
connection and are integral parts of one continuous
transaction, the actor may be found to be engaged in the
course of committing, or attempting to commit the
predicate offense or in immediate flight thereafter to
justify a conviction for felony murder. Whether a
defendant has reached a point of temporary safety is one
factor for the jury to consider in determining whether the
defendant was in immediate flight after commission or
attempt to commit the offense. State v. Spencer, 319 N.J.
Super. 284 (App. Div. 1999).

If more than one felony can serve as the basis for a
conviction of felony murder, the jury should be
instructed that it may only use the felonies of which it
convicts the defendant as the basis for a felony murder
conviction. If the jury convicts the defendant of more
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