cdTOCtest

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