According to a November 2020 Report generated by the Council on Criminal Justice, homicide rates spiked dramatically across 21 U.S. cities during the pandemic. In 2020, the average city homicide rate was 32% higher during the pandemic (March to October 2020), 42% higher during the summer (June to August 2020), and 34% higher during the fall (September and October 2020) than it was in 2019. Year-to-date (January to October 2020), the average city homicide rate was 29% higher in 2020 than it was in 2019. 

Fatal shootings by on-duty police officers in the U.S. also increased during 2020. According to the Washington Post’s Police Shootings Database, 1,021 people were shot and killed by police in 2020 as compared to the 999 people killed by police in 2019. With the exception of a slight decrease in 2016, fatal police shootings by on-duty officers in the U.S. have been steadily increasing since 2015. And while African-Americans account for only 13% of the U.S. population, they are killed by police at more than twice the rate of White Americans. 

Although it does not yet contain homicide data for 2020, The Federal Bureau of Investigation reports in its Crime Data Explorer that in 2019 there were 14,185 homicides. Of those victims, 78% were male, whereas only 21% were female. The overwhelming number of killers were also male (63%), with females making up only 8% of killers and offenders with unreported sex making up 27%. Regarding victim race, African-Americans comprised 54% of victims and White Amercans made up 42%. Finally, 42% of homicides were committed by people who knew the victim, whereas only 10% of homicides were committed by strangers (48% of relationships were unknown). 

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.2

(1980), 13–16.

1.  Common-Law Background. At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” Whatever the original meaning of that phrase, over time it became an “arbitrary symbol” used by judges to signify any of a number of mental states deemed sufficient to support liability for murder. Successive generations added new content to “malice aforethought” until it encompassed a variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words. Even today, judges find in the elasticity of this ancient formula a convenient vehicle for announcing new departures in the law of homicide.

Various authorities have given different summaries of the several meanings of “malice aforethought.” Generally, these definitions converge on four constituent states of mind. First and foremost, there was intent to kill. Common-law authorities included in the notion of intent to kill awareness that the death of another would result from one’s actions, even if the actor had no particular desire to achieve such a consequence. Thus, intentional or knowing homicide was murder unless the actor killed in the heat of passion engendered by adequate provocation, in which case the crime was manslaughter. A second species of murder involved intent to cause grievous bodily harm. Again, knowledge that conduct would cause serious bodily injury was generally assimilated to intent and was deemed sufficient for murder if death of another actually resulted. A third category of murder was sometimes called depraved-heart murder. This label derived from decisions and statutes condemning as murder unintentional homicide under circumstances evincing a “depraved mind” or an “abandoned and malignant heart.” Older authorities may have described such circumstances as giving rise to an “implied” or “presumed” intent to kill or injure, but the essential concept was one of extreme recklessness regarding homicidal risk. Thus, a person might be liable for murder absent any actual intent to kill or injure if he caused the death of another in a manner exhibiting a “wanton and wilful disregard of an unreasonable human risk” or, in confusing elaboration, a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.” The fourth kind of murder was based on intent to commit a felony. This is the origin of the felony-murder rule, which assigns strict liability for homicides committed during the commission of a felony. These four states of mind exhausted the meaning of “malice aforethought”; the phrase had no residual content.

2.     Antecedent Statutory Variations. Prior to the recodification effort begun by the Model Penal Code, most American jurisdictions maintained a law of murder built around these common-law classifications. The most significant departure was the division of murder into degrees, a change initiated by the Pennsylvania legislation of 1794. That statute provided that “all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate [and] premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree.” The thrust of this reform was to confine the death penalty, which was then mandatory on conviction of any common-law murder, to homicides judged to be particularly heinous. Other states followed the Pennsylvania practice until at one time the vast majority of American jurisdictions differentiated degrees of murder and the term “first-degree murder” passed into common parlance.

Leaving the question of felony-murder aside, the extent to which the common law had been modified in other ways prior to the drafting of the Model Penal Code varied considerably from jurisdiction to jurisdiction.

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.3

(1980), 44–46.

1.     Common-Law Background. Initially, the common law did not distinguish murder from manslaughter. Early statutes, however, sought to differentiate among criminal homicides for the purpose of withdrawing benefit of clergy from the more heinous killings. This initiative led to the division of criminal homicides into murder, which retained its status as a capital crime, and the lesser offense of manslaughter. The courts defined murder in terms of the evolving concept of “malice aforethought” and treated manslaughter as a residual category for all other criminal homicides. Thus, in its classic formulation, manslaughter consisted of homicide without malice aforethought on the one hand and without justification or excuse on the other.

Traditional statements of the English law as it further evolved divided the offense into two types. First, homicide, even if intentional, was said to be without malice and therefore was considered manslaughter if committed in the heat of passion upon adequate provocation. Second, homicide was also manslaughter if it resulted from an act that was regarded as unduly dangerous to life or limb or from an act that was otherwise unlawful. This category thus encompassed conduct that was insufficiently reckless or negligent to constitute “depraved-heart” murder but at the same time exhibited culpability greater than needed for ordinary conceptions of civil negligence. It also included cases where the actor caused the death of another in the commission of an unlawful act, sometimes described as the misdemeanor-manslaughter analogue to the felony-murder rule. Courts commonly referred to the first category as voluntary manslaughter and the second as involuntary manslaughter, although the distinction had no grading significance at common law.

2.      Antecedent Statutory Variations. Virtually every state recognized the crime of manslaughter at the time the Model Penal Code was drafted. The majority of states, however, offered no explicit definition of the offense and hence determined its content by reference to the common law. 

An article in the Baltimore Law Review examines the classifications of common law homicide in detail. In relevant part, the article notes that: 

Common law homicide was classified as justifiable, excusable or felonious. Justifiable homicide included the execution of a lawful death sentence and the slaying of an outlaw resisting capture. Excusable homicide included killings that were accidental, prompted by self-defense or perpetrated by an infant or person of unsound mind. Although criminal, excusable homicide was deserving of a pardon from the king. The third class of homicide, felonious homicide, was divided into two main categories, murder and all other forms of homicide without justification or excuse. 

Although the penalty for felonious homicide was death, anyone who could read was entitled to a commutation of the death sentence under the device known as “the benefit of clergy.” Because of the obvious inadequacy of reading ability as the sole criterion for determining the degree of punishment, the benefit of clergy was abolished by a series of statutes for those homicides committed with malice aforethought. The device was retained, however, for other types of felonious homicides. Thus, the presence or absence of malice aforethought became the criterion for distinguishing murder, or nonclergyable felonious homicide, punishable by death, from felonious homicide subject to the benefit of clergy, later termed manslaughter. The remaining development of common law murder revolves in large part around the evolution of the various meanings of the term “malice aforethought.” 

There were also a few states, typified by Florida, that carried forward the substance of the common-law offense by defining manslaughter as “the killing of a human being by the act, procurement or culpable negligence of another where such killing shall not be justifiable or excusable homicide nor murder.” A more common variation was reflected in the federal manslaughter provision:

Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

Statutes that followed this pattern typically departed from the common law by providing a grading differential between voluntary and involuntary manslaughter.

CA Penal Code § 187

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law

CA Penal Code § 188

Such malice may be express or implied. Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. Malice is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional completion of an act with express or implied malice, as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

CA Penal Code § 189

All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

As used in this section, "destructive device" means any destructive device as defined in Section 16460, and “explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.

As used in this section, "weapon of mass destruction" means any item defined in Section 11417.

To prove the killing was "deliberate and premeditated," it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

CA Penal Code § 189.5

(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

(b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.

CA Penal Code § 190

(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.

(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.

(c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true:

(1) The defendant specifically intended to kill the peace officer.

(2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer.

(3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022.

(4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.

(d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.

(e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.

CA Penal Code § 190.03

(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole.

(b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation.

(c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55.

(d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.

CA Penal Code § 190.05

(a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.

(b) A prior prison term for murder for purposes of this section includes either of the following:

(1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.

(2) Incarceration at a facility operated by the Youth Authority for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Director of Corrections.

(c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.

(d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.

(e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).

(f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If the new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in the state prison for a term of 15 years to life.

(g) Evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026, shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(h) In the proceeding on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition, and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or the prior prison term for murder of the first or second degree which subjects a defendant to the punishment of life without the possibility of parole, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(1) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of the prior prison term for murder.

(2) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(3) The presence or absence of any prior felony conviction.

(4) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(5) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(6) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct.

(7) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.

(8) Whether or not at the time of the offense the ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

(9) The age of the defendant at the time of the crime.

(10) Whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor.

(11) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of life without the possibility of parole if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in the state prison for 15 years to life.

(i) Nothing in this section shall be construed to prohibit the charging of finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

CA Penal Code § 190.1

A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:

(a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.

(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.

(c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.

CA Penal Code § 190.2 

(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:

(1) The murder was intentional and carried out for financial gain.

(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.

(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.

(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.

(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or  reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace

officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.

(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.

(9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.

(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, "juvenile proceeding" means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.

(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.

(15) The defendant intentionally killed the victim by means of lying in wait.

(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.

(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:

(A) Robbery in violation of Section 211 or 212.5.

(B) Kidnapping in violation of Section 207, 209, or 209.5.

(C) Rape in violation of Section 261.

(D) Sodomy in violation of Section 286.

(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.

(F) Oral copulation in violation of Section 288a.

(G) Burglary in the first or second degree in violation of Section 460.

(H) Arson in violation of subdivision (b) of Section 451.

(I) Train wrecking in violation of Section 219.

(J) Mayhem in violation of Section 203.

(K) Rape by instrument in violation of Section 289.

(L) Carjacking, as defined in Section 215.

(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.

(18) The murder was intentional and involved the infliction of torture.

(19) The defendant intentionally killed the victim by the administration of poison.

(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, "motor vehicle" means any vehicle as defined in Section 415 of the Vehicle Code.

(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.

(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.

(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.

The penalty shall be determined as provided in this section and Sections 190.1, 190.3, 190.4, and 190.5.

CA Penal Code § 190.25

(a) The penalty for a defendant found guilty of murder in the first degree shall be confinement in state prison for a term of life without the possibility of parole in any case in which any of the following special circumstances has been charged and specially found under Section 190.4, to be true: the victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed, and such defendant knew or reasonably should have known that such victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended
in the air, used for the transportation of persons for hire, or was a station agent or ticket agent for the entity providing such transportation, engaged in the performance of his or her duties.

(b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.

(c) Nothing in this section shall be construed to prohibit the charging or finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

CA Penal Code § 190.3

If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

CA Penal Code § 190.4

(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.

In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.

If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.

If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.

In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.

(b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.

(c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.

(d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances  referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.

The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant's automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).

CA Penal Code § 190.41

Notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant's extrajudicial statement.

CA Penal Code § 190.5

(a) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.

(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.

(c) The trier of fact shall determine the existence of any special circumstance pursuant to the procedure set forth in Section 190.4.

CA Penal Code § 190.6

(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.

(b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.

(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.

(d) The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.

CA Penal Code § 190.7

(a) The "entire record" referred to in Section 190.6 includes, but is not limited to, the following:

(1) The normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction.

(2) A copy of any other paper or record on file or lodged with the superior or municipal court and a transcript of any other oral proceeding reported in the superior or municipal court pertaining to the trial of the cause.

(b) Notwithstanding this section, the Judicial Council may adopt rules, not inconsistent with the purpose of Section 190.6, specifically pertaining to the content, preparation and certification of the record on appeal when a judgment of death has been pronounced.

CA Penal Code § 190.8

(a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.

(b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.

(c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.

Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.

(d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.

(e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.

(f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.

(g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.

(h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.

(i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.

(j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.

(k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997.

CA Penal Code § 190.9

(a) (1) In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2).

(2) Upon receiving notification from the prosecution that the death penalty is being sought, the clerk shall order the transcription and preparation of the record of all proceedings prior to and including the preliminary hearing in the manner prescribed by the Judicial Council in the rules of court. The record of all proceedings prior to and including the preliminary hearing shall be certified by the court no later than 120 days following notification unless the time is extended pursuant to rules of court adopted by the Judicial Council. Upon certification, the record of all proceedings is incorporated into the superior court record.

(b) (1) The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section.

(2) Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment is not a ground for reversal.

(c) Any computer-readable transcript produced by court reporters pursuant to this section shall conform to the requirements of Section 271 of the Code of Civil Procedure.

CA Penal Code § 191

The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter.

CA Penal Code §191.5

(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.   

(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.

Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.

(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.

CA Penal Code § 192 

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary--upon a sudden quarrel or heat of passion.

(b) Involuntary--in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular--

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision does not prevent prosecution of a defendant for the crime of murder.

(d) This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(e) "Gross negligence," as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal. 3d 290.

CA Penal Code § 192.5 

Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:

(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.

CA Penal Code § 193

(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years. 

(b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(c) Vehicular manslaughter is punishable as follows:

(1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.

(2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.

(3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.

Model Penal Code Article 210 B

§ 210.1. Criminal Homicide.

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.

(2) Criminal homicide is murder, manslaughter or negligent homicide.

§ 210.2. Murder.

(1) Except as provided in Section 210.3(1 )(b), criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6].

§ 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when:

(a) it is committed recklessly; or

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

(2) Manslaughter is a felony of the second degree.

§ 210.4. Negligent Homicide.

(1) Criminal homicide constitutes negligent homicide when it is committed negligently.

(2) Negligent homicide is a felony of the third degree

609.185 MURDER IN THE FIRST DEGREE.

(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:

(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another;

(2) causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another;

(3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit burglary, aggravated robbery, kidnapping, arson in the first or second degree, a drive-by shooting, tampering with a witness in the first degree, escape from custody, or any felony violation of chapter 152 involving the unlawful sale of a controlled substance;

(4) causes the death of a peace officer, prosecuting attorney, judge, or a guard employed at a Minnesota state or local correctional facility, with intent to effect the death of that person or another, while the person is engaged in the performance of official duties;

(5) causes the death of a minor while committing child abuse, when the perpetrator has engaged in a past pattern of child abuse upon a child and the death occurs under circumstances manifesting an extreme indifference to human life;

(6) causes the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life; or

(7) causes the death of a human being while committing, conspiring to commit, or attempting to commit a felony crime to further terrorism and the death occurs under circumstances manifesting an extreme indifference to human life.

(b) For the purposes of paragraph (a), clause (4), "prosecuting attorney" has the meaning given in section 609.221, subdivision 2, paragraph (c), clause (4).

(c) For the purposes of paragraph (a), clause (4), "judge" has the meaning given in section 609.221, subdivision 2, paragraph (c), clause (5).

(d) For purposes of paragraph (a), clause (5), "child abuse" means an act committed against a minor victim that constitutes a violation of the following laws of this state or any similar laws of the United States or any other state: section 609.221; 609.222; 609.223; 609.224; 609.2242; 609.342; 609.343; 609.344; 609.345; 609.377; 609.378; or 609.713.

(e) For purposes of paragraph (a), clause (6), "domestic abuse" means an act that:

(1) constitutes a violation of section 609.221, 609.222, 609.223, 609.224, 609.2242, 609.342, 609.343, 609.344, 609.345, 609.713, or any similar laws of the United States or any other state; and

(2) is committed against the victim who is a family or household member as defined in section 518B.01, subdivision 2, paragraph (b).

(f) For purposes of paragraph (a), clause (7), "further terrorism" has the meaning given in section 609.714, subdivision 1.

609.19 MURDER IN THE SECOND DEGREE.

Supreme Court of Appeals of West Virginia

State v. Guthrie

194 W. Va. 657, 461 S.E.2d 163

No. 22710

1995-07-19

STATE of West Virginia, Plaintiff Below, Appellee,

v.

Dale Edward GUTHRIE, Defendant Below, Appellant.

No. 22710.

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1995.

Decided July 19, 1995.

Concurring Opinion of Justice Workman, July 21, 1995.

[171] Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.

Stephen D. Warner, Deputy Public Defender, Charleston, for appellant. [164] [165] [166] [167] [168] [169]

[170] CLECKLEY, Justice:

The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. 

The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.

I. FACTS AND PROCEDURAL BACKGROUND

It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.

The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." 

The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.^[1] The police officers [172] described him as calm and willing to cooperate.

It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.

The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.

In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.

A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.

It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.

II. DISCUSSION

In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below. [173]

A. Sufficiency of the Evidence

First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.

We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:

"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."

A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),^[2] articulated, at least linguistically, a different standard of review under the United States Constitution.^[3] In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).

After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.^[4] By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.^[5] This standard is a strict one; a [174] defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.

Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:

"[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction."

State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).

However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:

"The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions,... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....

"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." (Citations omitted).

The circumstantial evidence rule of Holland was reaffirmed in Jackson:

"Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today." 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).

Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 [175] N.E.2d 492, 502 (1991),^[6] relying on the language in Holland, the Ohio court stated:

"Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder."

These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.^[7] Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.^[8]

In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.^[9] Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evidence, [176] regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant's claims.

We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case—those that the jury was unquestionably entitled to find—are rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.^[10] In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.

There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.^[11]

The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.

After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations [177] in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.

B. Jury Instructions 

The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. 

Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."

The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.

1. Standard of Review

The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.^[12] Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review.^[13] More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):

"The court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion." 

Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken [178] as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.^[14] So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.

2. Adequacy of Jury Instructions as to the Elements of First Degree Murder 

The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."^[15] This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.^[16] More precisely, the defendant asserts the trial court's instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.^[17]

The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"^[18] In its effort to define these terms, the trial court gave three instructions.^[19

State's Instruction No. 8 commonly referred to as the Clifford instruction, stated:

"The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously."

See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:

[179] "The Court instructs the jury that in order to constitute a ‘premeditated’ murder an intent to kill need exist only for an instant." State's Instruction No. 12 stated: "The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional." State's Instruction Nos. 10 and 12 are commonly referred to as Schroder instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).

The linchpin of the problems that flow from these instructions is the failure to adequately  inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.

At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an ‘arbitrary symbol’ used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.^[20] It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute. [21]

The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).

In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:

"The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction." (Emphasis added to last sentence).

In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to [180] the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:

"The terms 'deliberate' and 'premeditated' have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law § 73, at 563 (1972 ed.):

"To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.” (Footnotes omitted)

"But, as LaFave & Scott also point out: 'The intention may be finally formed only as a conclusion of prior premeditation and deliberation.' Id." 169 W.Va. at 200-01, 286 S.E.2d at 409.

Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:

"Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection." 169 W.Va. at 201, 286 S.E.2d at 409.

This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.

The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:

"Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of ‘premeditated’ as used in the statute was essentially ‘knowing’ and ‘intentional.’ Since then, courts have consistently recognized that the mental process necessary to constitute ‘willful, deliberate and premeditated’ murder can be accomplished very quickly or even in the proverbial ‘twinkling of an eye.’ ... The achievement of a mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language ‘willful, deliberate and premeditated’ in W.Va. Code, 61-2-1 [1923] is that the killing be intentional 172 W.Va. at 6, 302 S.E.2d at 75.” (Emphasis added).

The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.

While many jurisdictions do not favor the distinction between first and second degree murder,^[22] given the doctrine of separation of [181] powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the law—a bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schroder definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came "into existence for the first time at the time of such killing" completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.

Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder's notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. 

In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:

"To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous."

Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.[23] This is what [182] is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.[24]

We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled.

In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:

"Remaining true to an 'intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation 'special justification' exists to depart from the recently decided case." Adarand Constr., Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158, 185 (1995).

Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.

Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:

"A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214, is:

" 'The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he [183] intended, is sufficient to support a conviction for first degree murder.' "

Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.

As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.

C. Misconduct of the Prosecuting Attorney

We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.^[25]See McDougal v. McCammon, 193 W.Va. 229, 239, 455 S.E .2d 788, 798 (1995).

1. Disclosing the Possible Penalties

During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.

The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.

Both parties to this appeal seem to acknowledge that our cases are not entirely [184] consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the case sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State's Instruction No. 11 that stated, in part:

"[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release."

The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.^[26]See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) and 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988).

The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).^[27]

[185] Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.^[28]

We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:

"In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct.The same cannot be said with reference to the court's treatment of the Prosecutor's remark:

" 'When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.' "

159 W.Va. at 362, 222 S.E.2d at 306. 

The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.^[29] In short, we believe that the Court's discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.

Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."

It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.

2. Questions Relating to the Defendant's Prejudices

During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with [186] the women on the jury and the one African-American juror.

The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.^[30] The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.^[31] Nevertheless, a curative instruction was not requested by either party and none was given.

Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility [187] of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.

Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:

"Although Mr. Perrill referred to Dr. Arrieta as 'the colored lady' only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. 'To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.' McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979)."

The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.^[32]

Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.

The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.^[33] Quite clearly, evidence that the defendant was a "Bible-reading man" and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant's reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.^[34] This issue is in this case only because [188] the prosecution chose not to object to the inadmissible evidence.^[35] Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.

The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc.,262 N.W.2d 377, 387 (Minn.1977), stated:

"In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence."^[36] (Footnote omitted).

We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.

The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause—unfair prejudice, confusion, misleading the jury, delay, or repetition—and to exclude the evidence if the probative value is "substantially outweighed" by the harm.

Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance [189] in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant's guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:

"We have defined undue prejudice as " 'a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.' "...

"... When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion." (Citations omitted).

The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).^[37]

Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.

Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.

To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. [190] Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant's dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),^[38] it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S.,344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factors—race, religion, gender, political ideology—when prohibited by our laws shall not play any role in our system of criminal justice.

3. Harmless Error Standard

Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.

The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court^[39] is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.

In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an [191] improper statement that the defendant was guilty and urged the jury to "do its job").

Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti,729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).^[40] Therefore, we will reverse if we conclude that the prosecutor's conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.

In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.^[41] These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.

However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.^[42] The defendant [192] argues the State's nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:

" 'When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."

See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.^[43] We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E .2d 616 (1992), states:

" 'Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."

 III. CONCLUSION

In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."^[44] For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution's failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant's constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.^[45]

Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.

Reversed and remanded.

[193] BROTHERTON and RECHT, JJ., did not participate.

MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.

WORKMAN, J., concurs and reserves the right to file a concurring opinion.

WORKMAN, Justice, concurring:

I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion^[1] affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority's recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.

I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection^[2] and contemplation.^[3] The majority's interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield and Dodds cases that the majority upholds. See Hatfield,169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).

For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:

"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."

169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."

Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is, [194] lapses] between the forming of the intent to kill and the execution of that intent[.]" See Hatfield,169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).

[1] The confession, which was read to the jury, stated, in part:

"I arrived at work, at 4:00 o'clock, and was looking forward to another evening of work, I was looking forward to it, because I do enjoy working at Danny's Rib House. Upon my arrival at work I immediately observed the verbal and physical aggression of Mr. Farley. During the evening of work I heard him calling certain employee's 'Boy' and during the evening he referred to me as 'Boy' many times, I did and said nothing, continuing my work, letting it pass. He was really loud, and obnoxious, as I'm sure many employee's noticed. As the evening was coming to a close Mr. Farley walked very close by me and said 'that I had an "attitude problem." It was verbal, I let it pass, continuing my work. After bringing some dishes to the cook, I walked back to the dishwasher to begin drying off some dishes, Mr. Farley approached me and made a sarcastic comment about me being a quiet person, he walked ever closer, to me until he was in my face, as I was trying to carry out my responsibilities. After all these things were said, and even though he was exhibiting physical aggression by coming up to my face, and putting forth what I interpreted to be a challenge, again I did nothing, continuing to carry out my responsibilities. Standing a few inches from my face he took his wet dishrag and hit me once, on the forearm, I did nothing continuing my work. Standing in the same area, he hit me again on the forearm, obviously wanting a confrontation, I gave him none, continuing my work. Standing in the same place he hit me, hard, two times in the face, it really hurt, it was soaking wet, and it stung, as he brought it to bear upon my face, at that moment I thought he was going to go further and hit me, so I reached in my right pants pocket, and retrieved my lock blade knife, that I use for skinning rabbits and squirrells [sic] during hunting season. I swung at Mr. Farley with my right hand in which was my knife, he backed up, so I didn't swing twice, he slowly sunk to [the] floor, I ran to the front of the restaurant and yelled out, call the ambulance. All I came to work for, was to work, and carry out my obligations, having ill will toward no one, and I still have none, but I feel I had the right to respond, finally, to this act of aggression that was perpetrated against me, I do not exhibit aggressive, violent behavior but I felt I had no alternative, or recourse."

[2] Rehearing denied by 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

[3] There is some question as to whether Jackson reflects the current thinking of the United States Supreme Court. In the practical context, Jackson was a five-to-three decision; every member of the majority is gone from the Supreme Court; and the concurring trio. Justice Stevens joined by Chief Justice Burger and Justice Rehnquist, argued for a standard that asked whether there was some evidence to support the disputed finding. Since both opinions in Jackson held the evidence was adequate to convict, the choice between the two calibrations of the standard did not matter in that case. Also, neither of the two sequels to Jackson is illuminating. Herrera v. Collins,___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (the majority opinion by Chief Justice Rehnquist capsulized Jackson solely in order to distinguish it); Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (involved a fractured Supreme Court with no majority opinion).

While we are not certain as to how the United States Supreme Court will ultimately resolve this issue, the majority position in Jackson represents the pole most favorable to the defendant, and this stated position of the majority of justices has never been overruled. Accordingly, we proceed to consider whether on the record made in the trial court any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

[4] The reconciliation that we choose to do is consistent with a similar approach we took in State v. Kopa, 173 W.Va. 43, 49, 311 S.E.2d 412, 418 (1983), where we observed that adopting a different standard in criminal cases might "create the problem of sustaining convictions in the state court with predictable release through habeas corpus in the federal court." Although the two standards would not necessarily lead to different results, we believe it is unnecessary to have a criminal defendant subjected to different standards of review should the case ultimately end up in federal court. See York v. Tate, 858 F.2d 322 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989).

[5] While the language in Jackson seems to support a de novo review, see 443 U.S. at 324-26, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 577-78, the review is only de novo as to decisions made by the trial court. As to the jury's verdict, we are required to review all inferences in favor of the verdict, thus making deferential review appropriate.

[6] Rehearing denied by 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991).

[7] See State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

[8] Our conviction that the Holland rule is the better rule is not weakened by the fact that there is substantial conflict among the states as to whether the standard announced in Noe is preferable to that of Holland. According to our rough count, for states following the Noe rule, see Ex parte Williams, 468 So.2d 99 (Ala. 1985); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), cert. denied, ___ U.S. ___, 113 S.Ct. 1331, 122 L.Ed.2d 716 (1993); Murdix v. State, 250 Ga. 272, 297 S.E.2d 265 (1982); State v. Lilly, 468 So.2d 1154 (La. 1985); State v. Andrews, 388 N.W.2d 723 (Minn. 1986); State v. Easley, 662 S.W.2d 248 (Mo.1983); State v. Williams, 657 S.W.2d 405 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); State v. John, 586 P.2d 410 (Utah 1978); State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985). For states rejecting the Noe rule, see Des Jardins v. State, 551 P.2d 181 (Alaska 1976); State v. Harvitt, 106 Ariz. 386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del. 1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Finke v. State, 56 Md.App. 450, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (Md.1984), cert. denied sub num. Finke v. Maryland, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984); People v. Johnson,146 Mich.App. 429, 381 N.W.2d 740 (1985); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989).

[9] An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. State v. Bailey, supra. It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses.

[10] On cross-examination, the prosecuting attorney asked the defendant if, upon learning of the victim's death, he replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" This Court does not suggest this evidence should have been admitted. However, when reviewing a sufficiency of the evidence claim, an appellate court is entitled to review all the evidence that was actually admitted rightly or wrongly. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

[11] The evidence shows the victim's actions were irritating to the defendant well before the stabbing took place. His anger was building with each comment and flip of the towel. Furthermore, witnesses testified the defendant attempted to stab the victim a second time as he fell to the ground. The evidence shows the victim was slashed in the arm during this attempt. Finally, the defendant's statement that he "had the right to respond, finally, to this act of aggression that was perpetrated against [him]" is considered probative evidence of premeditation and deliberation.

[12] Generally, we review a trial court's refusal to give or the actual giving of a certain instruction under an abuse of discretion standard. Where, however, the question is whether the jury instructions failed to state the proper legal standard, this Court's review is plenary. "Whether jury instructions were properly [legally] given is a question of law[.]" U.S. v. Morrison, 991 F.2d 112, 116 (4th Cir.1993).

[13] In connection with a review of the legal sufficiency of the instructions, if we were to determine, as the State urges, that the defendant did not object to one or more of the trial court's instructions regarding the legal standard, we would review its legal propriety under a "plain error" standard. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Miller, we suggested that where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute "plain error."

[14] In Syllabus Point 8 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we stated:

" 'When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."

[15] Furthermore, we have stated on different occasions that "[t]he jury is the trier of the facts and 'there is no presumption that they are familiar with the law.' " State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 739 (1977), quoting State v. Loveless, 139 W.Va. 454, 469, 80 S.E.2d 442, 450 (1954).

[16] The defendant raises several other assignments of error regarding the jury instructions, but we find his arguments without merit.

[17] A form of this argument was made to this Court before when similar instructions were challenged and we found the contention to be without merit. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982); State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Actually only Schrader deals with the exact issue raised sub judice. For purposes of convenience, we will refer to instructions regarding the length of time necessary to form an intent to kill as the Clifford instruction, see State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), and those equating the intent to kill with premediation as the Schrader instruction.

[18] As to the other offenses, the jury instruction stated:

"[M]urder in the second degree is when one person kills another person unlawfully and maliciously, but not deliberately or premeditatedly; that voluntary manslaughter is the intentional, unlawful and felonious but not deliberate or malicious taking of human life under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person, or when engaged in a lawful act unlawfully causes the death of another person."

[19] We note that defense counsel did not object to State's Instruction No. 8, and, under our standard of review, the instruction would ordinarily be reviewed only for "plain error."

[20] The 1794 Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree[.]" 1794 Pa.Laws, Ch. 1766, § 2, quoted in Commonwealth v. Jones, 457 Pa. 563, 570-71, 319 A.2d 142, 147 (1974).

[21] W.Va.Code, 61-2-1, states, in part:

"Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the first degree. All other murder is murder of the second degree."

The Model Penal Code and many of the modern state criminal codes abolish the first and second degree murder distinction in favor of classifications based on more meaningful criteria. Interestingly, defining premeditation in such a way that the formation of the intent to kill and the killing can result from successive impulses, see Schrader, supra (intent equals premeditation formula), grants the jury complete discretion to find more ruthless killers guilty of first degree murder regardless of actual premeditation. History teaches that such unbridled discretion is not always carefully and thoughtfully employed, and this case may be an example. In 1994, the Legislature raised the penalty for second degree murder to ten-to-forty years (from five-to-eighteen years), making it less important to give juries the unguided discretion to find the aggravated form of murder in the case of more ruthless killings, irrespective of actual premeditation. The penalties are now comparable.

[23] In the absence of statements by the accused which indicate the killing was by prior calculation and design, a jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its condition at the time of the homicide; whether plan or preparation existed either in terms of the type of weapon utilized or the place where the killing occurred; and the presence of a reason or motive to deliberately take life. No one factor is controlling. Any one or all taken together may indicate actual reflection on the decision to kill. This is what our statute means by "willful, deliberate and premeditated killing."

[24] As examples of what type of evidence supports a finding of first degree murder, we identify three categories: (1) "planning" activity—facts regarding the defendant's behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design. The California courts evidently require evidence of all three categories or at least extremely strong evidence of planning activity or evidence of category (2) in conjunction with either (1) or (3). See People v. Anderson. 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). These examples are illustrative only and are not intended to be exhaustive.

[25] The inquiry focuses on the fairness of the trial and not the culpability of the prosecutor because allegations of prosecutorial misconduct are based on notions of due process. In determining whether a statement made or evidence introduced by the prosecution represents an instance of misconduct, we first look at the statement or evidence in isolation and decide if it is improper. If it is, we then evaluate whether the improper statement or evidence rendered the trial unfair. Several factors are relevant to this evaluation, among them are: (1) The nature and seriousness of the misconduct; (2) the extent to which the statement or evidence was invited by the defense; (3) whether the statement or evidence was isolated or extensive; (4) the extent to which any prejudice was ameliorated by jury instructions; (5) the defense's opportunity to counter the prejudice; (6) whether the statement or evidence was deliberately placed before the jury to divert attention to irrelevant and improper matters; and (7) the sufficiency of the evidence supporting the conviction. See generally Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

[26] We note the defendant is likewise prohibited from informing the jury of the possible sentences he may face if convicted. See generally U.S. v. Chandler, 996 F.2d 1073 (11th Cir.1993); Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993).

[27] A proper closing argument in a criminal case involves the summation of evidence, any reasonable inferences from the evidence, responses to the opposing party's argument, and pleas for law enforcement generally. See Coleman v. State, 881 S.W.2d 344 (Tex.Cr.App.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995).

[28] Precedent does not cease to be authoritative merely because counsel in a later case advances a new argument. See generally Matter of Penn Central Transp. Co., 553 F.2d 12 (3rd Cir.1977). But, as a practical matter, a precedent-creating opinion that contains no extensive analysis of an important issue is more vulnerable to being overruled than an opinion which demonstrates that the court was aware of conflicting decisions and gave at least some persuasive discussion as to why the old law must be changed.

[29] It appears the Court in Myers was under the assumption that a trial court had authority to instruct generally on the penalties in criminal cases. No authority is cited for that proposition, and we know of none to support such a sweeping statement.

[30] The transcript reveals the following exchange between the prosecuting attorney and the defendant's father:

"Q. When you all would have these discussions, political, all kinds of discussions, did he ever tell you that women should be in the home and that men were better than women?

"A. No.

"Q. You never heard him say that, never heard him comment on that?

"A. No.

"Q. Did you ever hear him comment that whites are better than blacks?

"MR. CLINE: Objection, Your Honor. Move to approach the bench.

"A. No, he did not.

"THE COURT: Just a moment. Let's not get into those areas. I don't think they're needed. I don't recall any blacks being involved in this case.

* * * * * *

"(Conference at the bench)

"MR. BROWN: This is the psychological report.

"THE COURT: Is this Smith's report?

"MR. BROWN: Yes. Here's the quote right here (indicating). This is where they talked about all kinds of things and where he alluded to the blacks and the KKK and—

"THE COURT: Well, I agree; but don't get into it. I agree that they talked about Hitler and blacks and things of that nature. I don't want that crap in here.

* * * * * *

"MR. BROWN: Let me explain. They're portraying this guy as a nice, calm, Bible reading man, takes long walks in the woods, a nice young man. And that's not what we really have here. What we have is a bigoted, prejudiced individual. And I've got witnesses who will testify to that. We've got a witness up here now who's trying to say he's a nice guy, quiet, and they're very serious people.

"THE COURT: I'll let you get it in through Smith.

* * * * * *

"... You can ask him if he ever talked about blacks, talked about—Knock it off there.

* * * * * *

"... Yes, you can bring back Smith and Gibson.

"MR. CLINE: Note our objection and exception for the record.

"MR. WARNER: Judge, before he brings it up we want to be heard at the bench or out of the hearing of the jury specifically on that issue, just what they've got, which are statements someone told to him, nothing to do with this crime. It has nothing to do with this crime, and it's highly prejudicial because it's—

* * * * * *

"(In open court)

"Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?

"A. Not discussions, no.

"Q. Did you ever hear him express views on the Klu [sic] Klux Klan?

"A. From the news that he has heard on TV.

"Q. Did you ever hear him express any opinion about Hitler?

"A. No."

[31] We consider the purpose of the prosecution's cross-examination was to impeach the witness by confronting him with information about his son that was inconsistent with the witness's testimony on direct examination. We note the prosecution made no effort to introduce the testimony of Dr. Smith. In this connection, however, it is well settled that a party may not present extrinsic evidence of specific instances of conduct to impeach a witness on a collateral matter. See W.Va.R.Evid. 608(b). A matter is considered noncollateral if "the matter is itself relevant in the litigation to establish a fact of consequence[.]" 1 McCormick On Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

[32] There is a plethora of authority supporting the notion that matters such as race, religion, and nationality should be kept from a jury's consideration. See Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946), where counsel for the plaintiff made reference to the defendant's religion and foreign nationality. This Court reversed stating "[t]hese matters, of course, were not pertinent to the matters in issue and had no place in the argument." 129 W.Va. at 263, 40 S.E.2d at 10. With uniform regularity, we have held that counsel should not be permitted to appeal to the jury's passions or prejudices. See generally Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); State v. Summerville, 112 W.Va. 398, 164 S.E. 508 (1932); Hendricks v. Monongahela West Penn Public Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932); State v. Hively, 108 W.Va. 230, 150 S.E. 729 (1929).

[33] The prosecution chose not to rebut evidence of the defendant being quiet or peaceful, which was permitted under Rule 404(a)(1), Rule 404(a)(2), and/or Rule 405.

[34] Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

[35] Although we recognize that the scope and extent of cross-examination lie within the discretion of the trial court, we believe it is important to underscore the principle of evidentiary law that no party has a right on cross-examination to offer irrelevant and incompetent evidence. See Doe v. U.S., 666 F.2d 43 (4th Cir.1981). The United States Supreme Court has noted that even the right to cross-examine witnesses may, in an appropriate case, "bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973). We believe Rule 403 is one of those "other legitimate interests."

[36] Professor McCormick addressed the question as to how the curative admissibility rule is triggered: "If the [irrelevant] evidence ... is so prejudice-arousing that an objection or motion to strike cannot have erased the harm, then it seems that the adversary should be entitled to answer it as of right." McCormick on Evidence § 57 at 84 (4th ed. 1992). Certainly, any prejudice flowing from the father's testimony could have been cured by a motion to strike and by an instruction to disregard.

[37] Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Fed.R.Evid. 403. Succinctly stated, evidence is unfairly prejudicial if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 403[03] at 403-15 to 403-17 (1978).

[38] Cert. denied sub nom. Hasting v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Williams v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Anderson v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Stewart v. U.S., 469 U.S. 1218, 105 S.Ct. 1200, 84 L.Ed.2d 343 (1985).

[39] See State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

[40] In O'Neal, the Supreme Court quoted with approval the following test of harmless error from the earlier case of Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566-67 (1946):

"If, when all is said and done, the [court] ... is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand[.] ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

[41] The only purpose this evidence could serve would be to prejudice the jury against the defendant. The defendant advises that at least one of the jurors was an African-American.

"It does not take much imagination to understand how such grossly biased comments would be viewed by the jury. We need not know the racial composition of the jury, for nearly all citizens find themselves repelled by such blatantly racist remarks and resentful of the person claimed to have uttered them." U.S. v. Ebens, 800 F.2d 1422, 1434 (6th Cir. 1986).

[42] A recess was held at the close of the defendant's cross-examination. Out of the presence of the jury, defense counsel moved for a mistrial:

"MR. WARNER: Your Honor, first of all, right before we closed, the Prosecutor cross examined my client on an alleged prior statement that he had made while sitting in the back of the police cruiser, immediately following the time that he apparently knew the person had died. The Prosecutor cross examined him, 'Didn't you say something to the effect, "Isn't that too bad",' or that type of statement.

"THE COURT: I think he said, 'Isn't that too bad. Do you think it will snow', or something like that.

* * * * * *

"MR. WARNER: Now that my thoughts are more clear, that statement was never, ever disclosed to us. I don't know if there is any foundation in fact for that statement at all. And I think it was terribly prejudicial at the same time. If I'm wrong on any of those points, the Prosecutor can correct me. And I would move for a mistrial based on that.

"MR. MORRIS: Judge, as I understood, that question was more or less a rebuttal question. He denied it. We are not able to prove by extraneous evidence anything he denies. That's pretty much—

"THE COURT: I think it was proper cross examination. The record will reflect what is in the transcript. Motion for a directed verdict [mistrial] is denied. I'll note your objection and exception."

Trial courts should preclude questions for which the questioner cannot show a factual and good faith basis. See generally State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987). Manifestly, mere inquiries by the prosecutor as to rumors may be highly prejudicial even though answered in the negative.

[43] Actually, this is not a real case of late disclosure; it is a case of no meaningful disclosure. From reading the record, it appears the first time this statement was disclosed was during cross-examination. At the very least, the prosecution should have approached the bench and revealed the existence of the statement before using it in the cross-examination of the defendant.

[44] E.E.O.C. v. Steamship Clerks Union Local 1066, 48 F.3d 594, 610 (1st Cir. 1995).

[45] "This is as it should be. Such ... will serve to justify trust in the prosecutor as 'the representative... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.' " Kyles v. Whitley, ___ U.S. ___, ___, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490, 509 (1995), quoting Berger v. U.S., 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).

[1] The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W.Va. at 202, 286 S.E.2d at 410 n. 7.

[2] The word "reflect" is defined by Webster's as "to think quietly and calmly."

[3] The word "contemplate" is defined by Webster's as "to view or consider with continued attention."

STATE OF NORTH CAROLINA v. JOHN FORREST

321 N.C. 186

No. 705A86

(Filed 2 December 1987)

1. Homicide § 24.1— shooting terminally ill parent — instructions on malice

In a murder prosecution where defendant had shot and killed his incurably and terminally ill father, the trial court did not err by instructing the jury that it could infer from the use of a deadly weapon that the killing was unlawful and committed with malice, and did not instruct the jury that malice should be presumed.

2. Homicide § 27.1— shooting of terminally ill parent — instructions—heat of passion doctrine

In a murder prosecution arising from defendant’s shooting of his terminally ill father, the trial court’s instruction on malice was not incomplete in that it failed to define “just cause, excuse, or justification.” The “heat of passion” doctrine is meant to reduce murder to manslaughter where defendant kills without premeditation and deliberation and without malice, but under the heat of passion suddenly aroused which makes the mind temporarily incapable of reflection. This defendant, though clearly upset by his father’s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.

3. Homicide § 23.1— instructions — definition of malice

The trial judge did not err in its instruction on malice in a first degree murder prosecution by failing to explicitly and specifically qualify the particular definition of malice as “that condition of mind that prompts a person to take the life of another intentionally” with the phrase “without just cause, excuse or justification.” The instruction given was consistent with the N.C. Pattern Jury Instructions, has been approved by the Supreme Court on numerous occasions, and is in essence the same as that which defendant argues.

4. Homicide § 18.1— killing of terminally ill parent — evidence of premeditation and deliberation — sufficient

There was sufficient evidence of premeditation and deliberation to submit a first degree murder charge to the jury where it was clear that the seriously ill deceased did nothing to provoke defendant’s action; the deceased was lying helpless in a hospital bed when defendant shot him four separate times; defendant’s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired; although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question; and defendant stated after the incident that he had thought about putting his father out of his misery because he knew he was suffering, that he had promised his father that he would not let him suffer, and that he could not stand to see his father suffer any more.

5. Criminal Law § 122.2— divided jury — inquiry into division — additional instructions — no error

The trial court did not err in a murder prosecution by inquiring into the numerical division of the jury or in its instructions to the jury about deliberating toward a verdict where the inquiry and instructions were not coercive when viewed in the totality of the circumstances.

Chief Justice Exum dissenting.

BEFORE Cornelius, J., and a jury at the 30 June 1986 Special Criminal Session of Superior Court, MOORE County, defendant was convicted of first-degree murder. From that conviction and the subsequent imposition of a sentence of life imprisonment entered by Judge Cornelius, defendant appeals as of right pursuant to N.C.G.S. § 7A-27(a). Heard in the Supreme Court 13 October 1987.

Lacy H. Thornburg, Attorney General, by William P. Hart, Assistant Attorney General, for the State.

Van Camp, Gill, Bryan & Webb, P.A., by James R. Van Camp, for defendant-appellant.

MEYER, Justice.

Defendant was convicted of the first-degree murder of his father, Clyde Forrest. The State having stipulated before trial to the absence of any statutory aggravating factors under N.C.G.S. § 15A-2000, the case was tried as a noncapital case, and defendant was sentenced accordingly to life imprisonment. In his appeal to this Court, defendant brings forward three assignments of error relative to the guilt-innocence phase of his trial. Having considered the entire record and each of these assignments in turn, we find no error in defendant’s trial. We therefore leave undisturbed defendant’s conviction and life sentence.

The facts of this case are essentially uncontested, and the evidence presented at trial tended to show the following series of events. On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be unbeatable and terminal. Accordingly, he was classified as “No Code,” meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father’s room when he arrived. While one of the nurse’s assistants was tending to his father, defendant told her, “There is no need in doing that. He’s dying.” She responded, “Well, I think he’s better.” The nurse’s assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse’s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, “I don’t think your father is as sick as you think he is.” Defendant, very upset, responded, “Go to hell. I’ve been taking care of him for years. I’ll take care of him.” Defendant was then left alone in the room with his father.

Alone at his father’s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father’s temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father’s room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: “You can’t do anything to him now. He’s out of his suffering.” “I killed my daddy.” “He won’t have to suffer anymore.” “I know they can burn me for it, but my dad will not have to suffer anymore.” “I know the doctors couldn’t do it, but I could.” “I promised my dad I wouldn’t let him suffer.”

Defendant’s father was found in his hospital bed, with several raised spots and blood on the right side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though defendant’s father had been near death as a result of his medical condition, the exact cause of the deceased’s death was determined to be the four point-blank bullet wounds to his head. Defendant’s pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.

At the close of the evidence, defendant’s case was submitted to the jury for one of four possible verdicts: first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. After a lengthy deliberation, the jury found defendant guilty of first-degree murder. Judge Cornelius accordingly sentenced defendant to the mandatory life term.

Defendant assigns three specific errors relative to his conviction at trial: first, that the trial court committed reversible error in its instruction to the jury concerning the issue of malice; second, that the trial court committed reversible error in its submission of the first-degree murder charge to the jury because there was insufficient evidence of premeditation and deliberation; third and finally, that the trial court committed reversible error when, during jury deliberation, it inquired into the jury’s numerical division and subsequently instructed the jury about deliberating toward a verdict. We deal with each assignment of error in turn.

I.

[1] In his first assignment of error, defendant asserts that the trial court committed reversible error in its instruction to the jury concerning the issue of malice. Defendant makes three specific arguments in support of his position on this assignment of error. First, states defendant, the instruction permitting an inference of malice from the use of a deadly weapon on these particular facts constituted an impermissible shift of the burden of persuasion on the issue of malice to defendant. Second, continues defendant, the trial court erred in giving incomplete instructions on the element of malice and in thereby improperly suggesting that the mitigating evidence presented at trial neither negated malice nor showed heat of passion. Third, concludes defendant, the trial court erred more generally in giving instructions on malice which were simply erroneous and misleading. We find each of defendant’s arguments unpersuasive, and we therefore overrule this assignment of error.

On the issue of malice, the trial court consistently instructed the jury as follows:

Malice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that’s malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim’s death you may infer, first, that the killing was unlawful. Second, that it was done with malice. But you are not compelled to do so. You may consider this, along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death. But you may consider such belief in determining whether the killing was done with malice.

It is this instruction to which defendant now assigns error.

Defendant first argues that, on the particular facts of this case, the trial court’s instruction permitting an inference of malice from the use of a deadly weapon improperly shifted the burden of persuasion on the issue of malice to defendant. Here, claims defendant, where the facts presented tended to show a distraught son who wanted merely to end his father’s suffering, the evidence in fact negated the element of malice. According to defendant, there was no rational connection here between the fact proved (intentional use of a dangerous weapon) and the fact inferred (malice). Therefore, concludes defendant, use of an inference under these circumstances was tantamount to shifting the burden of persuasion to defendant, because first, the jury was encouraged to draw the inference regardless of any other evidence presented, and second, it was told, in effect, that the inference could not be overcome — that the direct evidence was not a “legal defense.” We cannot agree.

The instruction employed by the trial court is in accord with the North Carolina Pattern Jury Instructions and with extensive North Carolina case law. See State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532 (1983); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979). Significantly, the trial court did not instruct the jury that malice should be presumed. On the contrary, the trial court instructed the jury that it “may infer” that the killing was unlawful and committed with malice, but that it was not compelled to do so. The trial court properly instructed the jury that it should consider this permissive inference along with all the other facts and circumstances, including defendant’s belief that his father was terminally ill or in danger of immediate death, in deciding whether the State had proven malice beyond a reasonable doubt. Defendant’s first argument therefore lacks merit.

[2] Defendant argues second that the trial court erred in giving incomplete instructions on the issue of malice, thereby improperly suggesting that any mitigating evidence presented did not negate malice or show heat of passion. While conceding that the instruction here was technically correct, defendant claims that it was nevertheless inadequate and misleading in that it failed to define what was meant by the phrase “just cause, excuse or justification.” According to defendant, there is abundant evidence in the record that, upon seeing his father at the hospital, he was overwhelmed by the futile, horrible suffering before him and that, in a highly emotional state, he killed to bring relief to the man he deeply loved. The jury instruction employed by the trial court, concludes defendant, because it did not instruct on heat of passion, for all intents and purposes precluded the jury from considering these critical facts in mitigation of the offense. We do not agree with defendant, and we hold that a heat of passion jury instruction on facts such as those of the case at bar is improper.

In essence, defendant asks this Court to hold that his extreme distress over his father’s suffering was adequate provocation, as in the “heat of passion” doctrine, to negate the malice element required for a murder conviction. Our Court has held on numerous occasions that, under certain circumstances, one who kills another human being in the “heat of passion,” produced by adequate provocation sufficient to negate malice, is guilty of manslaughter rather than murder. State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983); State v. Jones, 299 N.C. 103, 261 S.E. 2d 1(1979). A killing in the “heat of passion” on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1; State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).

Significantly, our Court has narrowly construed the requirement under the “heat of passion” doctrine that provocation be adequate and reasonable. We have held, for example, that mere words or insulting language, no matter how abusive, can never be adequate provocation and can never reduce murder to manslaughter under the “heat of passion” doctrine. State v. McCray, 312 N.C. 519, 324 S.E. 2d 606 (1985); State v. Montague, 298 N.C. 752, 259 S.E. 2d 899 (1979). We have held as adequate provocation an assault or threatened assault, State v. Montague, 298 N.C. 752, 259 S.E. 2d 899; State v. Williams, 296 N.C. 693, 252 S.E. 2d 739 (1979), and the discovery of the deceased spouse and a paramour in the act of intercourse, State v. Ward, 286 N.C. 304, 210 S.E. 2d 407, vacated in part 428 U.S. 903, 49 L.Ed. 2d 1207 (1974).

We are unwilling to hold that, as in the case at bar, where defendant kills a loved one in order to end the deceased’s suffering, adequate provocation to negate malice is necessarily present. The “heat of passion” doctrine is meant to reduce murder to manslaughter when defendant kills without premeditation and deliberation and without malice, but rather under the influence of the heat of passion suddenly aroused which renders the mind temporarily incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1. Here, irrefutable proof of premeditation and deliberation is clearly present. This defendant, though clearly upset by his father’s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.

The instruction employed by the trial court was correct, and we reject this second of defendant’s arguments that the jury instructions constitute reversible error.

[3] Defendant argues third that the trial court committed reversible error in giving instructions on the issue of malice which were erroneous and generally misleading. Defendant’s objection here is essentially a grammatical one and is directed at that portion of the jury instruction which reads as follows:

[Malice] also means that condition of the mind that prompts a person to take the life of another intentionally, . . . without just cause, excuse or justification.

The trial court, argues defendant, failed to explicitly and specifically qualify the particular definition of malice as “that condition of the mind that prompts a person to take the life of another intentionally” with the important phrase “without just cause, excuse or justification.” This, claims defendant, almost certainly led the jury to conclude that the intentional shooting alone required them to find malice, despite any evidence to the contrary. The trial court, adds defendant, should have defined malice in its instruction as follows:

That condition of the mind which prompts a person, without just cause, excuse or justification to take the life of another intentionally

or

to intentionally inflict serious bodily harm which proximately results in his death.

We do not agree, and we therefore decline defendant’s invitation to adopt a new jury instruction concerning the issue of malice. The instruction employed by the trial court is consistent with the North Carolina Pattern Jury Instructions and is the very instruction we have previously expressly approved on numerous occasions. State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532; State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604. Moreover, the instruction used at trial is, on its face, in essence the same as that for which defendant argues. Defendant’s third argument in support of this assignment of error is without merit, and the assignment as a whole is hereby overruled.

II.

[4] In his second assignment of error, defendant asserts that the trial court committed reversible error in denying his motion for directed verdict as to the first-degree murder charge. Specifically, defendant argues that the trial court’s submission of the first-degree murder charge was improper because there was insufficient evidence of premeditation and deliberation presented at trial. We do not agree, and we therefore overrule defendant’s assignment of error.

We recently addressed this very issue in the case of State v. Jackson, 317 N.C. 1, 343 S.E. 2d 814 (1986). Our analysis of the relevant law in that case is instructive in the case at bar:

Before the issue of a defendant’s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (1984); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114(1980). Substantial evidence must be existing and real, but need not exclude every reasonable hypothesis of innocence. State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177, reh’g denied, 464 U.S. 1004, 78 L.Ed. 2d 704 (1983). In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and inference to be drawn therefrom. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808 (1985); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114.

First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Fleming, 296 N.C. 559, 251 S.E. 2d 430 (1979); N.C.G.S. § 14-17 (1981 and Cum. Supp. 1985). Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980). Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982). The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason. State v. Myers, 299 N.C. 671, 263 S.E. 2d 768.

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975). Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the *196 defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 117, reh’g denied, 464 U.S. 1004, 78 L.Ed. 2d 704.  We have also held that the nature and number of the victim’s wounds is a circumstance from which premeditation and deliberation can be inferred. State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed. 2d 642(1982).

Jackson, 317 N.C. at 22-23, 343 S.E. 2d at 827.

As in Jackson, we hold in the present case that there was substantial evidence that the killing was premeditated and deliberate and that the trial court did not err in submitting to the jury the question of defendant’s guilt of first-degree murder based upon premeditation and deliberation. Here, many of the circumstances that we have held to establish a factual basis for a finding of premeditation and deliberation are present. It is clear, for example, that the seriously ill deceased did nothing to provoke defendant’s action. Moreover, the deceased was lying helpless in a hospital bed when defendant shot him four separate times. In addition, defendant’s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired. Interestingly, although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question but carried the gun to the hospital nonetheless.

Most persuasive of all on the issue of premeditation and deliberation, however, are defendant’s own statements following the incident. Among other things, defendant stated that he had thought about putting his father out of his misery because he knew he was suffering. He stated further that he had promised his father that he would not let him suffer and that, though he did not think he could do it, he just could not stand to see his father suffer any more. These statements, together with the other circumstances mentioned above, make it clear that the trial court did not err in submitting to the jury the issue of first-degree murder based upon premeditation and deliberation. Accordingly, defendant’s second assignment of error is overruled.

III.

[5] In his third assignment of error, defendant asserts that the trial court committed reversible error when it inquired into the numerical division of the deliberating jury and when it subsequently instructed the jury about deliberating toward a verdict. Defendant claims that the trial court’s actions taken in context were sufficiently coercive of the jury as to deny him a fair trial. We have recently addressed this very issue in a similar case, and we simply do not agree.

During its deliberation at trial, the jury returned to the courtroom on several occasions with a specific question. On one such occasion, the exchange between the trial court and the jury proceeded as follows:

[COURT]: Mrs. Kelly, as Foreperson of the jury, you have submitted a question to the Court. You have indicated that you are unable at this time to come to a unanimous decision. You would like the Court to advise you. Is that your question?

Foreperson: Yes, sir.

COURT: Listen very carefully to what I ask you. I’m going to ask you the numerical division. I don’t want you to tell me which way; just tell me the division numberwise the way the jury is now constituted.

FOREPERSON: You mean in numbers?

COURT: Yes, ma’m [sic].

FOREPERSON: Eleven to one.

COURT: And has that number remained the same throughout the proceedings, or has it shifted from time to time?

FOREPERSON: No, sir. It has been constant.

COURT: Members of the jury, your Foreperson has indicated that you’ve been unable to reach a verdict at this particular point. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict in this matter. You should reason the matter over together as reasonable men and women and to reconcile your differences if you can without the surrendering of your conscientious convictions. But no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of a fellow juror, or for the mere purpose of returning a verdict. The Court will now let you return to the jury room to continue with your deliberations, and when you’ve reached a unanimous verdict — please see if you can reach a unanimous verdict. If you can please knock on the door.

It was this inquiry and instruction by the trial court to which defendant now assigns error.

The disposition of defendant’s assignment of error is controlled by our recent decision in the very similar case of State v. Bussey, 321 N.C. 92, 361 S.E. 2d 564 (1987). There, as here, defendant challenged the trial court’s inquiry into the numerical division of the deliberating jury and its instruction concerning deliberating further toward a verdict. In Bussey, we reaffirmed our holding in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389 (1984), that such cases are to be decided by employing a totality of the circumstances test. Bussey, 321 N.C. 92, 361 S.E. 2d 564. Therefore, the proper analysis here is whether, upon consideration of the totality of the circumstances, the inquiry and instruction of the trial court were unduly coercive.

As in Bussey, we hold here that, when viewed in the totality of the circumstances, the challenged inquiry and instruction were not coercive of the jury’s verdict. Our exact analysis in Bussey is appropriate in the case at bar as well:

The record shows that the presiding judge made it perfectly clear from the outset that he did not wish to be told whether the majority favored guilt or innocence. He was at all times respectful of the jury, never impugning its efforts or threatening it with being held for unreasonable periods of time to accomplish a unanimous verdict. The judge was confronted with a report of deadlock .... He properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree. The judge’s additional instructions in response to the first inquiry of the jury hew closely to the language of N.C.G.S. § 15A-1235. They are notable for the balance he achieved between recalling the jurors to their duty to deliberate fully and reminding them that their duty also required them to stand fast for their convictions after full reflection. Nor is there the slightest reference in his remarks to burdens on the administration of justice, to wasted court resources, or to the necessity of empanelling another jury in the event of a mistrial. The trial judge’s instructions and remarks were well within the rules established in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389, and State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978).

Id. at 97, 361 S.E. 2d at 567.

In oral argument, defendant placed particular emphasis upon the final two sentences of the trial court’s instruction to the jury, claiming that this amounted to pleading by the court that the jury reach a verdict. Specifically, the court concluded its instruction to the jury as follows:

The Court will now let you return to the jury room to continue with your deliberations, and when you’ve reached a unanimous verdict — please see if you can reach a unanimous verdict. If you can please knock on the door.

Assuming, arguendo, as defendant argues, that these two sentences, if taken out of context, might be considered of questionable propriety, we find that, in the context of the court’s total instruction and, in particular, of its admonishment to the jury that no juror should surrender any conscientious convictions, this passage is not coercive and does not constitute error in the court’s instructions.

In conclusion, having reviewed the record and each of defendant’s assignments of error, we find that defendant had a fair trial, free of prejudicial error. Accordingly, we leave undisturbed defendant’s conviction of the first-degree murder of Clyde Forrest and his sentence of life imprisonment.

No error.

Chief Justice Exum Dissenting.

Almost all would agree that someone who kills because of a desire to end a loved one’s physical suffering caused by an illness which is both terminal and incurable should not be deemed in law as culpable and deserving of the same punishment as one who kills because of unmitigated spite, hatred or ill will. Yet the Court’s decision in this case essentially says there is no legal distinction between the two kinds of killing. Our law of homicide should not be so roughly hewn as to be incapable of recognizing the difference. I believe there are legal principles which, when properly applied, draw the desirable distinction and that both the trial court and this Court have failed to recognize and apply them.

The difference, legally, between the two kinds of killings hinges on the element of malice, the former being without, and the latter with, malice. The absence of malice, however, does not mean the killing is justified or excused so as not to be unlawful; it means simply that the killing is mitigated so as not to be murder but manslaughter. Our cases have traditionally recognized the distinction between mitigation and excuse in the law of homicide. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), and cases therein cited and discussed.

The error in the trial court’s instructions stems from the failure to recognize this difference between mitigation and excuse. The trial court instructed that malice was “that condition of mind that prompts a person to take the life of another intentionally .. . without just cause, excuse or justification.” This instruction, correct insofar as it goes, is incomplete. The trial court should have added “and without mitigation.”

Failure to include circumstances in mitigation as capable of rebutting malice, in effect, precluded the jury from considering at all defendant’s reasons for killing his father on the issue of whether he acted with malice. The instructions were that only matters which excused the killing altogether were sufficient to rebut the element of malice! The trial court then told the jury that defendant’s reasons for killing his father would not excuse the killing, saying,

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death.

Although the trial court followed this immediately with, “But you may consider such belief in determining whether the killing was done with malice,” he gave the jury no theory by which the circumstances might in law rebut the inference of malice which arose from the intentional killing with a deadly weapon. In essence this instruction was superfluous because the jury had already been told that only legal defenses, as opposed to circumstances in mitigation, could be considered on the issue of malice. At best the instructions were conflicting on the crucial element in the case. Ordinarily this kind of error calls for a new trial. State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969).

The jury’s confusion concerning the malice instructions is revealed by their three requests that the trial court repeat them and the trial court’s finally submitting them to the jury in writing.

For this error in the trial court’s instructions, I vote to give defendant a new trial.

Herbert Lee Richardson Background

Herbert Lee Richardson Clemency Petition

Felony Murder Rule

The felony murder rule is designed to impose harsh consequences on individuals who, in the course of committing a felony, contribute to someone else’s death. Simply put, a felony + a killing = felony murder.

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.2

(1980), 30–32.

The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony. Some courts have made no effort to qualify the application of this doctrine, and a number of earlier English writers also articulated an unqualified rule. Moreover, at the time the Model Code was drafted, a number of American legislatures perpetuated the original statement of the rule by statute. As thus conceived, the rule operated to impose liability for murder based on the culpability required for the underlying felony without separate proof of any culpability with regard to the death. The homicide, as distinct from the underlying felony, was thus an offense of strict liability. This rule may have made sense under the conception of mens rea as something approaching a general criminal disposition rather than as a specific attitude of the defendant towards each element of a specific offense. Furthermore, it was hard to claim that the doctrine worked injustice in an age that recognized only a few felonies and that punished each as a capital offense.

In modern times, however, legislatures have created a wide range of statutory felonies. Many of these crimes concern relatively minor misconduct not inherently dangerous to life and carry maximum penalties far less severe than those authorized for murder. Application of the ancient rigor of the felony-murder rule to such crimes will yield startling results. For example, a seller of liquor in violation of a statutory felony becomes a murderer if his purchaser falls asleep on the way home and dies of exposure. And a person who communicates disease during felonious sexual intercourse is guilty of murder if his partner subsequently dies of the infection.

The prospect of such consequences has led to a demand for limitations on the felony-murder rule. Consider Ca. Penal Code § 189, the California felony murder statute. Note that there are only some, enumerated felonies that constitute murder: “arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking. . .” Ca. Penal Code § 189. Even given this California limitation, the results may seem quite disproportionate, as the following case illustrates.

Nelson E. Roth & Scott E. Sundby—The Felony-Murder Rule: A Doctrine at Constitutional Crossroads

70 Cornell Law Review 446 (1985), 446–55, 457–59.

Few legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule. Criticism of the rule constitutes a lexicon of everything that scholars and jurists can find wrong with a legal doctrine: it has been described as “astonishing” and “monstrous,” an unsupportable “legal fiction,” “an unsightly wart on the skin of the criminal law,” and as an “anachronistic remnant” that has “ ‘no logical or practical basis for existence in modern law.’ ” Perhaps the most that can be said for the rule is that it provides commentators with an extreme example that makes it easy to illustrate the injustice of various legal propositions.

Despite the widespread criticism, the felony-murder rule persists in the vast majority of states. Most states have attempted to limit the rule’s potential harshness either by limiting the scope of its operation or by providing affirmative defenses. Such patchwork attempts to mitigate the rule’s harshness, however, have been legitimately criticized because “they do not resolve [the rule’s] essential illogic.” * * * The United States thus remains virtually the only western country still recognizing a rule which makes it possible “that the most serious sanctions known to law might be imposed for accidental homicide.” * * *

I

The Conceptual Basis of the Felony-Murder Rule

A.  The Rule’s Historical Development * * *

The purpose of the felony-murder rule at common law is * * * vague. It is frequently argued that the rule’s purpose was not fully articulated because all felonies at common law were punished by death and, therefore, the rule had little practical impact. * * *

Whatever the felony-murder rule’s justification at common law, courts have attempted to provide the rule with a contemporary rationale. These post hoc rationalizations fall into four general categories: deterrence, transferred intent, retribution, and general culpability.

B.  Deterrence

The deterrence rationale consists of two different strains. The first approach views the felony-murder rule as a doctrine intended to deter negligent and accidental killings during commission of felonies. Proponents argue that co-felons will dissuade each other from the use of violence if they may be liable for murder. Justice Holmes attempted to justify the rule on this basis by arguing that the rule would be justified if experience showed that death resulted disproportionately from the commission of felonies. Holmes added the caveat that “I do not * * *, however, mean to argue that the rules under discussion arose on the above reasoning, any more than that they are right, or would be generally applied in this country.”

The second view focuses not on the killing, but on the felony itself, and endorses the felony-murder rule as a deterrent to dangerous felonies. From this perspective, punishing both accidental and deliberate killings that result from the commission of a felony is “the strongest possible deterrent” to “undertaking inherently dangerous felonies.”

Both of the deterrence justifications are logically flawed and neither has proven to have a basis in fact. The illogic of the felony-murder rule as a means of deterring killing is apparent when applied to accidental killings occurring during the commission of a felony. Quite simply, how does one deter an unintended act? * * * Moreover, any potential deterrence effect on unintentional killings is further reduced because few felons either will know that the felony-murder rule imposes strict liability for resulting deaths or will believe that harm will result from commission of the felony. Finally, statistical evidence has not borne out Holmes’s proposed justification that a disproportionate number of killings occur during felonies.

The purpose of deterring the commission of dangerous felonies through the felony-murder rule also lacks a legitimate basis. First, considerable doubt exists that serious crimes are deterred by varying the weight of the punishment. Second, the rule from this perspective uses the sanctions for murder to deter felonies, and “it is usually accepted as wiser to strike at the harm intended by the criminal rather than at the greater harm possibly flowing from his act which was neither intended nor desired by him.” Where the killing is unintended, it would be far more sensible to enhance the sentence for conduct over which the felon had control, such as the carrying of a deadly weapon, rather than automatically to elevate the killing to murder. Finally, as with the other deterrence rationale, the felony-murder rule can have no deterrent effect if the felon either does not know how the rule works or does not believe a killing will actually result. * * *

C.  Transferred Intent and Constructive Malice: The Felony-Murder Rule’s Presumption of Culpability

The felony-murder rule may be conceptualized as a theory of “transferred or constructive intent.” This theory posits that the intent to commit the felony is “transferred” to the act of killing in order to find culpability for the homicide. The rule thus serves “the purpose of * * * reliev[ing] the state of the burden of proving premeditation or malice.”

Judges and commentators have criticized the transferred intent theory of felony murder as “an anachronistic remnant” that operates “fictitiously” to broaden unacceptably the scope of murder. The very concept of transferred intent has been criticized as having “no proper place in criminal law.” * * *

The inapplicability of transferred intent to felony murder becomes evident when the crime’s two different mens rea elements are examined: the intent to commit the felony and the culpability for the killing. The mental patterns are thus distinct and separate; for example, the intent to burglarize cannot be equated with the malice aforethought required for murder. The non-transferability of culpability is even more evident where the felony-murder rule allows elevation of the killing to first degree murder. In such a situation, the rule equates the intent to commit the felony with premeditation and deliberation, specific mental states that require proof of particular acts and thoughts. * * *

D. Retribution and General Culpability: A Strict Liability View of the Felony-Murder Rule

* * * An alternative approach is to view the rule as not requiring a separate mens rea element for the homicide, but as justifying conviction for murder simply on the basis that the defendant committed a felony and a killing occurred.

* * * The justifications advanced for this conceptualization are deterrence of the underlying felony, and the notion that the felon has exhibited an “evil mind” justifying severe punishment.

The “evil mind” theory of felony murder finds its roots in seventeenth and eighteenth century English notions of criminology. Mens rea was a less developed concept and judges focused on the harm resulting from a defendant’s illegal act, rather than the maliciousness of his intent. The felony-murder rule thus partly operated on an unarticulated rationale that one who does bad acts cannot complain about being punished for their consequences, no matter how unexpected. Moreover, the felony-murder rule conceived from an “evil mind” perspective comported with the retribution theory of punishment prevailing at the time of the rule’s development, which focused on the resulting harm, not on the actor’s mental state, in deciding the appropriate punishment. A convict, therefore, bore responsibility for his felony and for any harmful result arising from the crime regardless of his specific intentions.

Continued reliance on a general culpability theory to justify the felony-murder rule has been described as a rather “primitive rationale” and as “a tribute to the tenacity of legal conceptions rooted in simple moral attitudes.” The “evil mind” theory conflicts with the basic premise that “the criminal law is concerned not only with guilt or innocence in the abstract but also with the degree of criminal liability.” Although the general culpability rationale was perhaps sufficient as long as a general intent of wrongdoing established malice aforethought, it conflicts with the progressive trend of categorizing homicide according to the degree of culpability. Indeed, the felony-murder rule viewed from a general culpability perspective effectively eliminates a mens rea element in convicting a felon for a killing occurring during the commission of a felony, and results in the rule operating as a strict liability crime: the occurrence of a killing is punished as murder regardless of the defendant’s culpability.

David Crump & Susan Waite Crump—In Defense of the Felony Murder Doctrine

8 Harvard Journal of Law & Public Policy 359 (1985), 361–63, 367–72, 374–76.

I. The Policies Supporting the Felony Murder Rule

A. Rational Classification and Proportional Grading of Offenses: Actus Reus as an Element of Just Desert

Classical theory divides the elements of crimes into two categories: mens rea and actus reus. Mens rea, or “guilty mind,” is the mental state or states required to complete the offense. Actus reus may be translated literally as “the wrongful act,” but it is better understood as referring to all of the physical elements of the crime, including the defendant’s actions, the surrounding circumstances, and the consequences.

Differences in result must be taken into account as part of actus reus if classification and grading are to be rational. For example, murder and attempted murder may require similar mental states * * * but no common law jurisdiction treats the two offenses as one, and certainly none treats attempted murder more severely. The only difference justifying this classification is that death results in one offense but not in the other. Similarly, it is a misdemeanor for a person to operate a motor vehicle while impaired by drugs or alcohol, but if this conduct causes the death of a human being, the offense in some jurisdictions is elevated to the status of homicide. * * *

These classifications are the result of a concern for grading offenses so as to reflect societal notions of proportionality. * * *

The felony murder doctrine serves this goal, just as do the distinctions inherent in the separate offenses of attempted murder and murder, or impaired driving and vehicular homicide. Felony murder reflects a societal judgment that an intentionally committed robbery that causes the death of a human being is qualitatively more serious than an identical robbery that does not. ...[T]he felony murder doctrine reflects the conclusion that a robbery that causes death is more closely akin to murder than to robbery. If this conclusion accurately reflects societal attitudes, and if classification of crimes is to be influenced by such attitudes in order to avoid depreciation of the seriousness of the offense and to encourage respect for the law, then the felony murder doctrine is an appropriate classificatory device.

There is impressive empirical evidence that this classification does indeed reflect widely shared societal attitudes. * * *

B.  Condemnation: Reaffirming the Sanctity of Human Life

A purpose of sentencing closely related to proportionality is that of condemnation. * * * [T]he purpose of condemnation or of expressing societal outrage deserves separate mention as a policy concern underlying the felony murder rule.

Condemnation itself is a multifaceted idea. It embodies the notion of reinforcement of societal norms and values as a guide to the conduct of upright persons, as opposed to less upright ones who presumably require the separate prod of “deterrence.” The felony murder rule serves this purpose by distinguishing crimes that cause human deaths, thus reinforcing the reverence for human life. * * * Another aspect of condemnation is the expression of solidarity with the victims of crime. If we as a society label a violent offense in a manner that depreciates its significance, we communicate to the victim by implication that we do not understand his suffering. * * * Felony murder is a useful doctrine because it reaffirms to the surviving family of a felony-homicide victim the kinship the society as a whole feels with him by denouncing in the strongest language of the law the intentional crime that produced the death.

 * * *

C.  Deterrence

Deterrence is often cited as one justification for the felony murder doctrine. * * * Deterrence is the policy most often recognized in the cases. 

Scholars, however, tend to dismiss this rationale, using such arguments as the improbability that felons will know the law, the unlikelihood that a criminal who has formed the intent to commit a felony will refrain from acts likely to cause death, or the assertedly small number of felony-homicides.

The trouble with these criticisms is that they underestimate the complexity of deterrence. There may be more than a grain of truth in the proposition that felons, if considered as a class, evaluate risks and benefits differently than members of other classes in society. The conclusion does not follow, however, that felons cannot be deterred, or that criminals are so different from other citizens that they are impervious to inducements or deterrents that would affect people in general. * * * The felony murder rule is just the sort of simple, commonsense, readily enforceable, and widely known principle that is likely to result in deterrence.

At the same time, the argument that felons may be ignorant of the law is unduly categorical. * * * [T]he general population, including felons, is probably more aware of the outlines of the felony murder doctrine than of many other, more common criminal concepts, if only because of the influence of television. * * *

The argument against deterrence often proceeds on the additional assumption that felony murder is addressed only to accidental killings and cannot result in their deterrence. * * * The proposition that accidental killings cannot be deterred is inconsistent with the widespread belief that the penalizing of negligence, and even the imposition of strict liability, may have deterrent consequences.

D. Clear and Unambiguous Definition of Offenses and Sentence Consequences

Clear definition of crimes is advantageous. Imprecision in homicide definition is particularly prevalent and troublesome. * * * If properly defined and applied, the felony murder doctrine sometimes provides the advantage of greater clarity. The mental state of intention to commit robbery, rape, or kidnapping is less ambiguous than the terms generally governing homicidal mental states. * * *

E. Optimal Allocation of Criminal Justice Resources

Another advantage of the felony murder rule * * * is that it may aid in the optimal allocation of criminal justice resources. * * * The efforts of judges, courtroom time, lawyering on both sides, and support services are all scarce resources. Although we resist thinking of criminal justice in these terms, and few would be willing to put a specific dollar price upon its proper function, the quality of our justice is limited by the scarcity of these resources and by the efficiency with which we allocate them. * * *

F.  Minimization of the Utility of Perjury

Many crimes are defined more broadly than their harmful consequences alone might justify. For example, there are prohibitions upon the possession of heroin or the carrying of certain kinds of weapons, even though these actions, without use of the contraband, are not intrinsically harmful. A person might attempt to defend his possession of heroin by stating that he did not intend to use or distribute it (for example, he might explain that he collects controlled substances as others collect coins or stamps). This explanation, even if true, would be regarded as irrelevant under most statutes.

Such a result may be justified by the concern that any other approach would unduly reward perjury. * * * A similar rationale may underlie the felony murder rule; thus * * * the Pennsylvania Supreme Court justified its application of the felony murder rule to the circumstances before it with the observation, “It is rare * * * that a criminal telephones or telegraphs his criminal intent. * * *The law itself is brought into disrepute when it is defined so that perjury is frequent. Jurors might be induced to lose respect for the criminal justice system even as they acquit the defendant on his ambiguous claim of accident, which they disbelieve but cannot reject beyond a reasonable doubt.

Notes and Questions

1.    State Variety. Not all states recognize the felony murder rule. For example, Hawaii and Kentucky explicitly do not recognize the felony murder rule via their statutory schemes. Massachusetts, Michigan, and New Mexico on the other hand, do not recognize felony-murder by case law. See Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 737 (2017); People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980); and State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991).

2.    Changing Law. In 2018, the California legislature redefined felony murder to bar prosecutors from bringing charges against co-felons who did not, themselves, kill the victims. For more information on the bill, see  Article: Landmark California Law Bars Prosecutors From Pursuing Murder Charges Against People Who Didn’t Commit Murder. To view the amended and added statutes, please see California Penal Code §§ 188, 189, and 1170.95.

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, Saint Paul, Minnesota, for appellant. Keith M. Ellison, Attorney General, Saint Paul, Minnesota; and Kimberly J. Maki, St. Louis County Attorney, Duluth, Minnesota; and Tyler J. Kenefick, Assistant St. Louis County Attorney, Hibbing, Minnesota, for respondent.

OPINION

On January 6, 2019, Joshua Lavalley was fatally shot in the head two times near the Mesabi Trail in St. Louis County. The State charged appellant Deshon Bonnell with one count of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2022), under an aiding and abetting theory of criminal liability; one count of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3) (2022), and one count of aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2022). Bonnell was later indicted on charges of premeditated first-degree murder in violation of Minn. Stat. § 609.185(a)(1) (2022), and first-degree intentional felony murder while committing a kidnapping in violation of Minn. Stat. § 609.185(a)(3) (2022). The mandatory penalty for a conviction of either premeditated murder or intentional felony murder while committing a kidnapping is life in prison without the possibility of release. Minn. Stat. § 609.106, subd. 2 (2022).

On September 25, 2019, Bonnell pleaded guilty to one count of first-degree felony murder during the commission of an aggravated robbery in violation of Minn. Stat. § 609.185(a)(3). The penalty for a conviction of first-degree felony murder while committing aggravated robbery is life in prison with the possibility of release after 30 years. Minn. Stat. §§ 609.185(a)(3), 244.05 (2022). On October 25, 2019, the district court sentenced Bonnell to life imprisonment with the possibility of release after 30 years. Bonnell subsequently filed a petition to withdraw his guilty plea under Minn. R. Crim. P. 15.05, subd. 1. The district court denied the petition. Bonnell's appeal of that decision is before us now.

We reverse. Rule 15.05, subdivision 1, provides that “the court must allow a defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” We conclude that Bonnell has demonstrated that withdrawal is necessary to correct a manifest injustice because the plea record does not show that Bonnell admitted to adequate facts to find him guilty of murder while committing an aggravated robbery.

FACTS

Bonnell, Lavalley, and two others were together on January 6, 2019, in Hibbing, Minnesota. At some point, Lavalley was robbed. The parties dispute whether Bonnell participated in the robbery. Sometime later, Bonnell, Lavalley, and one other unnamed person ended up along the Mesabi Trail where, Bonnell admitted, he shot Lavalley two times in the head, killing him.

After an investigation, the State charged Bonnell with second-degree intentional murder, kidnapping, and aggravated robbery. A grand jury subsequently indicted Bonnell on charges of first-degree premeditated murder and first-degree felony murder while committing a kidnapping.

Bonnell and the State reached a plea agreement under which Bonnell would plead guilty to one count of first-degree felony murder during the commission of an aggravated robbery, a crime that carries a minimum life sentence with the possibility of release after 30 years. Minn. Stat. §§ 609.185(a)(3), 244.05. In exchange for Bonnell's plea, the State dismissed all remaining charges, including the more serious charges. The plea agreement allowed Bonnell to avoid a possible conviction for an offense carrying a mandatory penalty of life without the possibility of release. See Minn. Stat. § 609.106, subd. 2.

The district court held a hearing where Bonnell testified to the facts set forth above. The district court accepted his plea. In conformity with the agreement, the district court sentenced Bonnell to a life sentence with the possibility of release after 30 years.

Bonnell filed a timely postconviction petition. He alleged that the plea colloquy did not establish an adequate factual basis for felony murder during the commission of an aggravated robbery. The postconviction court denied Bonnell's petition, determining that plea withdrawal was not necessary to correct a manifest injustice. Bonnell now appeals.

ANALYSIS

The question before us is whether Bonnell must be allowed to withdraw his guilty plea because of a manifest injustice. The validity of a guilty plea is a question of law we review de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

Minnesota Rule of Criminal Procedure 15.05, subdivision 1, provides: “At any time the court must allow a defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” A manifest injustice exists when a guilty plea is not valid. Raleigh, 778 N.W.2d at 94. “To be constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent.” State v. Fugalli, 967 N.W.2d 74, 77 (Minn. 2021).

The manifest injustice claimed here is that the guilty plea was inaccurate. “To be accurate, a plea must be established on a proper factual basis.” Raleigh, 778 N.W.2d at 94. A proper factual basis requires evidence that the defendant's conduct meets all elements of the offense to which he is pleading guilty. State v. Iverson, 664 N.W.2d 346, 349–50 (Minn. 2003); see also State v. Mikulak, 903 N.W.2d 600, 605 (Minn. 2017) (holding that a guilty plea was inadequate when the defendant's plea indicated that he did not “know” about the predatory registration requirement, thus negating the “knowingly” element of the crime). The district court judge must ensure there are “sufficient facts on the record to support a conclusion that defendant's conduct falls within the charge to which he desires to plead guilty.” Kelsey v. State, 298 Minn. 531, 214 N.W.2d 236, 237 (1974); see Nelson v. State, 880 N.W.2d 852, 861 (Minn. 2016) (stating that the district court judge “must make certain that facts exist from which the defendant's guilt of the crime” to which he is pleading guilty can be reasonably inferred). We do not require that a defendant expressly admit each essential element of the crime; all that is required is that the defendant admit facts that are adequate to allow the district court to reasonably infer an essential element of the crime from the record. See Nelson, 880 N.W.2d at 861. Guilty pleas lacking a sufficient factual basis must be set aside. State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988).

To properly assess whether Bonnell's guilty plea to felony murder is accurate, we must first understand what the State must show to prove felony murder. A person commits first-degree felony murder if he intentionally causes the death of another person “while committing or attempting to commit” one of several enumerated felony crimes, including aggravated robbery. Minn. Stat. § 609.185(a)(3).¹ The critical question in this case, then, is whether there is adequate evidence that the killing occurred “while” Bonnell was committing aggravated robbery. See Bellcourt v. State, 390 N.W.2d 269, 274 (Minn. 1986) (holding that killing was felony murder because there was “no real question that defendant killed [the victim] while committing the crime of aggravated robbery”).

The clearest cases of felony murder are those when the killing occurs during the commission of the predicate felony. See id. at 271–72, 274 (holding that felony murder applied when the defendant was robbing a liquor store and killed the victim during the course of the robbery); State v. Peou, 579 N.W.2d 471, 478 (Minn. 1998) (upholding felony murder conviction when defendant entered a store with the intent to commit robbery and then committed murders during that robbery). But we have also recognized that “[t]he felony murder rule encompasses a killing by one trying to escape or conceal a felony as long as there was no break in the chain of events between the felony and the killing.” State v. Russell, 503 N.W.2d 110, 113 (Minn. 1993) (citation omitted) (internal quotation marks omitted). To capture this concept, we have stated that a killing occurs while a defendant is committing a predicate felony if the predicate felony and the killing are part of “one continuous transaction.” Kochevar v. State, 281 N.W.2d 680, 686 (Minn. 1979) (upholding a conviction for felony murder based on a predicate offense of aggravated assault when the defendant admitted he fired one shot to scare the victim and “[w]ithin seconds” a struggle ensued, and the fatal shot was fired).

We have analyzed whether a predicate felony and a killing are part of “one continuous transaction” by considering whether the “ ‘fatal wound’ was inflicted during the ‘chain of events’ so that the requisite time, distance, and causal relationship between the felony and killing are established.” Russell, 503 N.W.2d at 113 (quoting 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.5(f), at 223 n.88 (1986)). The three factors—“time, distance, and causal relationship”—are lenses through which to analyze the dispositive question of whether the killing occurred “while” the defendant was committing the predicate felony. In some cases, each of the factors will shed light on that question; in others, some factors may be useful while others are not. Further, we have held that even if the predicate felony and the killing occurred at the same time and place, if the killing did not share a causal relationship with the predicate felony, no felony murder occurred. State v. Darris, 648 N.W.2d 232, 239 (Minn. 2002); see also State v. Webster, 894 N.W.2d 782, 785–86 (Minn. 2017) (noting that this court only needed to analyze “causal relationship” because “the requisite time and distance between the attempted aggravated robbery and the killing” were not at issue).

The plea colloquy record here does not provide an adequate factual basis to show that Bonnell “cause[d] the death” of Lavalley “while committing ․ aggravated robbery.” Minn. Stat. § 609.185(a)(3).² In the simplest terms, it stretches the ordinary meaning of the statutory language to conclude that the murder of Lavalley on the Mesabi Trail happened “while” Bonnell was committing aggravated robbery in Hibbing. While, Webster's Third New International Dictionary 2604 (2002) (defining “while” as “during the time that”); New Oxford American Dictionary 1969 (3d ed. 2010) (defining “while” as “during the time that; at the same time as”); The American Heritage Dictionary of the English Language 2033 (3d ed. 1992) (defining “while” as “as long as; during the time that”). The predicate felony of aggravated robbery was complete when Lavalley's cash was taken. See State v. Townsend, 941 N.W.2d 108, 112 (Minn. 2020) (“A robbery is complete the moment all of the elements have been satisfied․”). There is no evidence—nor even a suggestion—that Lavalley was killed during an escape from the aggravated robbery, or to cover up the aggravated robbery, or, indeed, for any reason related to the aggravated robbery. See Russell, 503 N.W.2d at 113 (noting that “the fatal wound was inflicted during the course of the robbery even though [the victim] may not have died until later”); see also State v. Murphy, 380 N.W.2d 766, 771–72 (Minn. 1986) (stating that felony murder applied when the defendant killed the victim immediately following the rape—the predicate felony—to conceal his crime); see generally Darris, 648 N.W.2d at 238 (explaining that the “historical purpose” behind felony murder is “to punish an unintentional killing that results from a felony more severely than other unintentional killings in order to deter killings that might occur during the commission of a felony”).

Causal relationship is the central factor in the analysis in assessing whether a killing occurred while the defendant was committing the predicate felony. See Darris, 648 N.W.2d at 239–40 (holding that the state failed to prove felony murder when it did not establish a causal relationship between the predicate felony and the killing even though the predicate robbery felony and the killing occurred at the same time and place). As the LaFave treatise states, “[T]he homicide must have some causal connection with the felony in order to qualify for felony murder; more than a mere coincidence of time and place is necessary.” Wayne R. LaFave, Substantive Criminal Law 465 (2nd ed. 2003) (hereinafter “LaFave”); see Russell, 503 N.W.2d at 113 (holding that “the robbery [predicate crime] and the gagging, strangulation, and positioning of [the victim] ․ were parts of a single, continuous transaction or chain of events because the activities occurred ․ as part of the act of robbing [the victim]”) (emphasis added).

“[W]hether there is a sufficient causal connection between the felony and the homicide depends on whether the defendant's felony dictated his conduct which led to the homicide.” LaFave, at 466. In this case, nothing in the record suggests that Bonnell's decision to kill Lavalley (at a different time and in a different place) had any connection to the aggravated robbery. The absence of any evidence from which to draw an inference establishing a causal connection supports the conclusion that the plea colloquy record was inadequate to show that Bonnell killed Lavalley while he committed aggravated robbery.³

Moreover, in this case, the spatial connection between the aggravated robbery and the killing does not tell us much to convince us that the killing occurred while Bonnell was committing aggravated robbery. The record shows that the aggravated robbery occurred in the city of Hibbing and Lavalley was shot on the Mesabi Trail. We do not know the actual distance between the location of the aggravated robbery and the location of the killing, however, because the record does not disclose where in Hibbing the aggravated robbery occurred and where along the Mesabi Trail the killing occurred. If anything, the fact that two events happened in two distinct places suggests that the killing did not occur while Bonnell was committing aggravated robbery. That analysis is true on these facts even if we assume that the distance between the two events was relatively short—a matter of a few miles. Notably, we have never affirmed a felony murder conviction when aggravated robbery is the predicate offense and the aggravated robbery and the killing occurred in distinct locations. See Bellcourt, 390 N.W.2d at 273; Russell, 503 N.W.2d at 113; Peou, 579 N.W.2d at 478; State v. Harris, 589 N.W.2d 782, 793 (Minn. 1999); Darris, 648 N.W.2d at 239; State v. Fox, 868 N.W.2d 206, 223–24 (Minn. 2015); Webster, 894 N.W.2d at 784; State v. Jones, 977 N.W.2d 177, 188 (Minn. 2022).⁴

The State's argument on the spatial connection between the two events focuses not on location or distance, but rather on the evidence in the record that the two locations are connected because Bonnell and his accomplices transported Lavalley from Hibbing to the Mesabi Trail. However, because the underlying crime is aggravated robbery—a crime that was complete when the property was taken from Lavalley in Hibbing—the mere fact that Lavalley and Bonnell travelled together from Hibbing to the Mesabi Trail does not provide compelling insight into whether the killing occurred while Lavalley was being robbed.

Similarly, the evidence in the plea colloquy testimony about the temporal relation between the predicate felony and the killing does not shed much light on whether the killing occurred while Bonnell was committing the aggravated robbery. At best, there is a sequential element in Bonnell's plea hearing testimony: Bonnell stated that he was present when others took cash from Lavalley and that he later caused Lavalley's death while on the Mesabi Trail.⁵ But there is no evidence about either the time the aggravated robbery took place or the time that Bonnell caused Lavalley's death. In the absence of such facts, the district court had nothing from which to draw a reasonable inference that the killing occurred while Bonnell was committing the aggravated robbery.

It is true that we do not require precision on the time of the predicate felony and the killing. State v. McBride, 666 N.W.2d 351, 366 (Minn. 2003). In McBride, for example, McBride was convicted of felony murder after a trial for killing his victim while committing criminal sexual conduct. Id. McBride argued on appeal that the state failed to establish that the killing occurred while McBride was committing criminal sexual conduct because the evidence “d[id] not prove precisely when the criminal sexual conduct occurred or when the fatal blows were inflicted.” Id. We rejected that argument because McBride testified about the specific and limited period of time that he was with the victim (9:30 p.m. to 2:30 a.m.) and other evidence showed that the criminal sexual conduct injuries occurred within a certain period before the victim's death. Id. In contrast, as noted above, the plea colloquy record here includes no information about the time of the aggravated robbery or the killing.⁶

In short, the temporal evidence provides little help in determining whether Bonnell killed Lavalley while he was committing aggravated robbery. And, as noted, even if the evidence in the plea colloquy record weakly shows that the aggravated robbery and the killing occurred in the same time period, that in and of itself is not dispositive of the question of whether the killing occurred while Bonnell committed aggravated robbery. See Darris, 648 N.W.2d at 239 (holding that even if the predicate felony and the killing occurred at the same time and place, no felony murder occurred because the killing did not share a causal relationship with the predicate felony).

In conclusion, the evidence in the plea colloquy record is inadequate to show that Bonnell “cause[d] the death” of Lavalley “while committing ․ aggravated robbery.” See Minn. Stat. § 609.185(a)(3). The record simply does not contain sufficient facts to support a conclusion that Bonnell's conduct falls within the charge to which he pleaded guilty. Accordingly, Bonnell's plea is inaccurate, and he must be allowed to withdraw his plea to avoid a manifest injustice under Rule 15.05, subd. 1.⁷

CONCLUSION

For the foregoing reasons, we reverse the decision of the postconviction court. We remand the case to the district court for trial on the charges pending when Bonnell pleaded guilty (premeditated first-degree murder in violation of Minn. Stat. § 609.185(a)(1); first-degree intentional felony murder while committing a kidnapping in violation of Minn. Stat. § 609.185(a)(3); second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1), under an aiding and abetting theory of criminal liability; kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3); and aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1), subject to amendment of those charges as allowed by law.

Reversed.

FOOTNOTES

1.   Bonnell made three primary arguments in his postconviction petition. First, he asserted that the plea hearing record did not establish his intent to kill Lavalley. Second, he argued that the record at the plea hearing did not establish that he was guilty of the predicate crime of aggravated robbery. Third, he asserted that, even if he was guilty of aggravated robbery, he did not kill Lavalley “while committing ․ aggravated robbery.” See Minn. Stat. § 609.185(a)(3). The postconviction court rejected each of those arguments. On appeal, Bonnell did not challenge the postconviction court's decision that the plea colloquy record was adequate to show an intent to kill. He did challenge the postconviction court's decision that the record was adequate to show that he committed aggravated robbery. Based on our resolution of the case, however, we do not need to reach the question of whether Bonnell's plea colloquy was adequate to establish that Bonnell committed aggravated robbery.

2.   On appeal, the State relies (with one exception) on the statements made by Bonnell in his plea colloquy—and not on sources outside Bonnell's plea hearing testimony—to support its argument. The one exception is the parties’ reference to the approximately 4-mile distance between the location of the aggravated robbery someplace in Hibbing and the location of the killing along the Mesabi Trail near the “Kerr” location, which the plea colloquy does not describe. As discussed below, even if we consider that the distance between the predicate robbery and the killing was approximately 4 miles, it would not make a difference in our resolution of this case.

3.   In a few cases, we have hinted that a shared motivation for the predicate felony and the killing is relevant to the analysis of whether the killing occurred while the defendant was committing the predicate felony. State v. Heden, 719 N.W.2d 689, 697–98 (Minn. 2006) (affirming a conviction for felony murder where the defendant tried to quiet a baby with a bottle, a pacifier and “digital penetration” (criminal sexual conduct) before losing his temper and shaking her to death); State v. McBride, 666 N.W.2d 351, 365–66 (Minn. 2003) (holding that the state proved felony murder because the beating that caused death and the acts of criminal sexual conduct occurred as part of the defendant's broader plan to torture the victim). It is not clear from our opinions whether the shared motivation is an independent factor or merely an indication that the killing took place at a time and place sufficiently proximate to the predicate felony.In this case, in contrast, there is absolutely no evidence in the plea colloquy record about the motivation for the aggravated robbery or the killing. The State urges us to conclude that a shared motivation connected the aggravated robbery and the killing based on the fact that the aggravated robbery and the killing involved the same victim, the same weapon, and some of the same people. We conclude that to do so would be impermissible speculation. Notably, in both Heden and McBride, the killing and the predicate felony also occurred in the same place and at the same time; facts that (as we discuss more below) are not evident from the plea colloquy record in this case.

4.   On this point, we emphasize that the offense of aggravated robbery is complete when the defendant takes the victim's property (having done so using or threatening the use of force). See Townsend, 941 N.W.2d at 112. Cases involving a predicate offense, like kidnapping, where transport of the victim may be part of the predicate offense, may present different considerations. In addition, no evidence suggests that Bonnell killed Lavalley in the course of an escape or to cover up his aggravated robbery, see Murphy, 380 N.W.2d at 771–72, or to prevent the victim-witness from testifying.

5.   The only testimony that Bonnell gave in the guilty plea colloquy about the temporal connection between the robbery and killing is:Q. After this money was taken from the person of [Lavalley], did you cause the death of [Lavalley]?A. Yes, ma'am.

6.   In addition, it was central to our decision in McBride that the evidence at trial showed that the defendant “tortured [the victim] to death” and that the predicate criminal sexual misconduct felony was part of that torture and occurred in the same location. McBride, 666 N.W.2d at 366. In contrast, the evidence from the plea colloquy in this case showed that the aggravated robbery occurred and ended in Hibbing while the killing occurred on the Mesabi Trail.

7.   The State argues that no manifest injustice exists because the plea colloquy showed that Bonnell admitted facts proving first-degree premeditated murder, a crime at least as serious as first-degree felony murder. However, the State forfeited this issue by not raising it in the district court. See State v. Brown, 932 N.W.2d 283, 296 n. 14 (Minn. 2019). Accordingly, we decline to consider the issue of whether adequate evidence in the plea colloquy record demonstrates that Bonnell committed premeditated murder.

THISSEN, Justice.

[Crim. No. 3317. Fifth Dist. Nov. 21, 1978.]

THE PEOPLE, Plaintiff and Appellant, v. ARCHIE FULLER et al., Defendants and Respondents.

Counsel

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Joel E. Carey and Eddie T. Keller, Deputy Attorneys General, for Plaintiff and Appellant.

John B. Smurr, under appointment by the Court of Appeal, Paul Halvonik, and Quin Denvir, State Public Defenders, Gary S. Goodpaster and Ezra Hendron, Chief Assistant State Public Defenders, Mark L. Christiansen and Richard G. Fathy, Deputy State Public Defenders, for Defendants and Respondents.

Opinion

FRANSON, Acting P. J.

Introduction

This appeal challenges the California felony-murder rule as it applies to an unintentionally caused death during a high speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended motor vehicle. Solely by force of precedent we hold that the felony-murder rule applies and respondents can be prosecuted for first degree murder.

Statement of the Case and Facts

Respondents were charged by information with murder (Pen. Code, § 187) and several counts of burglary. In response to a Penal Code section 995 motion to set aside the information, the trial court dismissed the murder charge and amended the information to substitute a vehicular manslaughter charge under Penal Code section 192, subdivision 3, paragraph (a). The People have appealed.

The pertinent facts are as follows: On Sunday, February 20, 1977, at about 8:30 a.m., uniformed Cadet Police Officer Guy Ballesteroz was on routine patrol in his vehicle, proceeding southbound on Blackstone Avenue in the City of Fresno. As the officer approached the Fresno Dodge car lot, he saw an older model Plymouth parked in front of the lot. He also saw respondents rolling two tires apiece toward the Plymouth. His suspicions aroused, the officer radioed the dispatcher and requested that a police unit be sent.

Officer Ballesteroz kept the respondents under observation as he proceeded past the car lot and stopped at the next intersection. As he reached that point he saw the respondents stop rolling the tires and walk to the Plymouth on the street. Ballesteroz made a U-turn and headed northbound on Blackstone. The respondents got into the Plymouth and drove away “really fast.” Thereafter, a high speed chase ensued which eventually resulted in respondents’ car running a red light at the intersection of Blackstone and Barstow Avenues and striking another automobile which had entered the intersection. The driver of the other automobile was killed. Respondents were arrested at the scene. The chase from the car lot covered some 7 miles and lasted approximately 10 to 12 minutes. During the chase the respondents’ car narrowly missed colliding with several other cars including two police vehicles that were positioned to block their escape.

Later investigation revealed that four locked Dodge vans at the car lot had been forcibly entered and the spare tires removed. Fingerprints from both of the respondents were found on the jack stands in some of the vans.

Respondents May Be Prosecuted for First Degree Felony Murder

Penal Code section 189 provides, in pertinent part: “All murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or [lewd acts with a minor], is murder of the first degree; . . .” (Italics added.) This statute imposes strict liability for deaths committed in the course of one of the enumérated felonies whether the killing was caused intentionally, negligently, or merely accidentally. (People v. Cantrell (1973) 8 Cal.3d 672, 688 [105 Cal.Rptr. 792, 504 P.2d 1256]; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570].) Malice is imputed and need not be shown. (People v. Burton (1971) 6 Cal.3d 375, 384-385 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Ireland (1969) 70 Cal.2d 522, 538 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R. 3d 1323].) The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. (People v. Washington (1965) 62 Cal.2d 111, 781 [44 Cal.Rptr. 442, 402 P.2d 130]; see Holmes, The Common Law, pp. 56-57.)

Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. (People v. Talbot (1966) 64 Cal.2d 691, 705 [51 Cal.Rptr. 417, 414 P.2d 633]; People v. Thomas (1975) 44 Cal.App.3d 573, 575 [117 Cal.Rptr. 855]; People v. Earl (1973) 29 Cal.App.3d 894, 900 [105 Cal.Rptr. 831].) Whether or not the particular burglary was dangerous to human life is of no legal import. (Earl, supra.)

The meaning of murder committed “in the perpetration of’ a felony within Penal Code section 189 also is clear. The Supreme Court has stated that this language does not require a strict causal relation between the felony and the killing; it is sufficient if both are “parts of one continuous transaction.” (People v. Welch (1972) 8 Cal.3d 106, 118 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. Mason (1960) 54 Cal.2d 164, 169 [4 Cal.Rptr. 841, 351 P.2d 1025].) Flight following a felony is considered part of the same transaction as long as the felon has not reached a “place of temporary safety." People v. Salas (1972) 7 Cal.3d 812, 822 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832]; People v. Boss (1930) 210 Cal. 245, 250 [290 P. 881].) Whether the defendant has reached such a place of safety is a question of fact for the jury. Respondents’ reliance on People v. Ford (1966) 65 Cal.2d 41, 56 [52 Cal.Rptr. 228, 416 P.2d 132] for the proposition that this is a legal question is misplaced. In Ford, the court held that it was a question of law in that particular case because many hours had elapsed between the felony and the killing, and there was no evidence that the defendant was attempting to escape at the time of the killing.

Respondents argue that although California has applied the felony-murder rule to escaping robbers no case has applied the rule to escaping burglars. They cite dicta in People v. Boss, supra, 210 Cal. 245, 251, to support the distinction between those escaping from robberies: “Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property.” (Id., at p. 251.)

This distinction does not withstand analysis. A burglary predicated on theft can be committed with equal or greater violence than a robbery, and leaving the scene with the stolen property is equally important. Moreover, the Boss dicta has not been cited to support such a distinction in any other California case. Furthermore, other states do not draw a distinction between burglary and robbery flight. To the contrary, the felony-murder rule has been applied to unintended deaths in the course of burglary flight. (See, e.g., People v. Hickman (1973) 12 Ill.App.3d 412 [297 N.E.2d 582]—flight by armed defendants who had burglarized warehouse in nighttime; Gore v. Leeke (1973) 261 S.C. 308 [199 S.E.2d 755]; Commonwealth v. Carey (1951) 368 Pa. 157 [82 A.2d 240]—armed defendant fled from residence he burglarized at night; State v. Ryan (1937) 192 Wash. 160 [73 P.2d 735]; Lakes v. State (1937) 61 Okla.Crim. 252 [67 P.2d 457];State v. Adams (1936) 339 Mo. 926 [98 S.W.2d 632, 108 A.L.R. 838]—defendants fleeing after burglarizing a filling station in nighttime; Francis v. State (1919) 104 Neb. 5 [175 N.W. 675]—armed defendants fleeing after burglarizing store buildings; Conrad v. State (1906) 75 Ohio St. 52 [78 N.E. 957]—fleeing defendants had burglarized a home; see generally Felony-Murder Rule—“Termination of Felony” (1974) 58 A.L.R.3d 851, 962-975.) Thus, the trial court erred in striking the murder count premised upon the felony-murder rule.

We deem it appropriate, however, to make a few observations concerning the irrationality of applying the felony-murder rule in the present case. In People v. Washington, supra, 62 Cal.2d 777, 783, a case limiting the rule’s application to killings committed by the defendant or his accomplice, our Supreme Court stated: “The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state (Pen. Code, § 189), it should not be extended beyond any rational function that it is designed to serve.” (Italics added.) In People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], the court elaborated: “We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.” (Id., at pp. 582-583, fns. omitted.) The Phillips court explained, “The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant’s commission of another but because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin. . . .” (Id., at p. 583, fn. 6.)

The Supreme Court has recently reaffirmed its dislike of the felony-murder rule in People v. Henderson (1977) 19 Cal.3d 86, 92-93 [137 Cal.Rptr. 1, 560 P.2d 1180]. The literature is replete with criticism of the rule. See, for example, Perkins on Criminal Law (2d ed. 1969) page 44; Packer, The Case for Revision of the Penal Code (1961) 13 Stan. L. Rev. 252, 259.

In People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383], our Supreme Court reversed a second degree felony-murder conviction arising out of a killing by an ex-felon in possession of a concealed weapon (a sawed-off shotgun) in violation of Penal Code section 12021. The court concluded that the felony must be viewed in the abstract and not on the basis of the particular facts of the case; that the carrying of a concealed weapon by an ex-felon is not a felony inherently dangerous to human life “. . . because we can conceive of such a vast number of situations wherein it would be grossly illogical to impute malice, . . .” (6 Cal.3d at p. 40.) The court accepted the defendant’s argument that of the many activities that are punishable as felonies only some clearly manifest a propensity for dangerous acts by the perpetrator; hence, it cannot be said theoretically that a felon who is armed with a concealable weapon presents a danger significantly greater than a nonfelon similarly armed. The court, however, pointed out that independent of the felony-murder rule the prosecution was still free to prove any degree of murder or manslaughter that the evidence might substantiate. (Id., atp. 33, fn. 11.)

Satchell also considered the propriety of a felony-murder instruction based upon a violation of Penal Code section 12020. This section provides that any person in possession of certain weapons, including a sawed-off shotgun, is guilty of a felony. The court concluded that this offense abstractly viewed also is not inherently dangerous to human life since it makes no distinction between the innocent gun collector and the hardened criminal. Again the court noted that if such possession was of an extremely reckless nature indicating a “conscious disregard for human life,” malice could be imputed via ordinary murder principles. (6 Cal.3d atp. 42.)

In People v. Lopez (1971) 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372], the Satchell reasoning was used to reverse a second degree murder conviction based on the underlying felony of escape from a county jail. (Pen. Code, § 4532.) “We cannot conclude that those who commit nonviolent escapes such as those here suggested thereby perpetrate an offense which should logically serve as the basis for the imputation of malice aforethought in a murder prosecution. Because section 4532 draws no relevant distinction between such escapes and the more violent variety, it proscribes an offense which, considered in the abstract, is not inherently dangerous to human life and cannot properly support a second degree felony-murder instruction.” (Italics original.) (6 Cal.3d at pp. SI-52, fn. omitted.)

And in People v. Morales (1975) 49 Cal.App.3d 134 [122 Cal.Rptr. 157], it was held that grand theft from the person of another is not an inherently dangerous felony to support a felony-murder charge: “It is apparent that the offense can readily be perpetrated without any significant hazard to human life; . . . Only in the unusual case would a taking from the person involve a substantial danger of death without the thief using force against his victim. If the thief does use force, either to effect the taking or to resist the victim’s efforts to retrieve the property [citation], the crime becomes robbery, and will support application of the felony-murder rule for that reason. Where the thief abstains from the use of force, he thereby removes the chief source of danger to human life; in such case the purpose of the felony-murder rule, ‘to deter felons from killing negligently or accidentally’ [citation], has already been achieved, and thus there would be no rational purpose to be served in extending the doctrine to cover the nonforceful larceny.” (49 Cal.App.3d at p. 143.)

Finally, the grand theft of an automobile in violation of Vehicle Code section 10851 followed by a high speed chase resulting in an unintended death does not constitute the commission of a felony inherently dangerous to human life so as to support the felony-murder doctrine (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647], disapproving People v. Pulley (1964) 225 Cal.App.2d 366 [37 Cal.Rptr. 376], on the ground that Pulley erroneously looked to the particular facts of the felony in determining its dangerous character).

Therefore, one may cogently ask: If possession of a concealed weapon by an ex-felon, escape from a county jail, and grand theft of an automobile are not felonies per se dangerous to human life so as to provide a basis for the felony-murder rule, how may the theft of personal property from an unattended vehicle without the use of weapons be deemed inherently dangerous? Furthermore, if such a burglary will not support a second degree felony murder, how can it rationally be used to support a first degree felony murder?

If we were writing on a clean slate, we would hold that respondents should not be prosecuted for felony murder since viewed in the abstract, an automobile burglary is not dangerous to human life. The present case demonstrates why this is so. Respondents committed the burglary on vans parked in a dealer’s lot on a Sunday morning. There were no people inside the vans or on the lot at the time. The respondents were not armed and presumably had no expectation of using violence during the burglary.

Furthermore, treating the flight as part of the burglary to bootstrap the entire transaction into one inherently dangerous to human life simply begs the issue; flight from the scene of any crime is inherently dangerous. So, if a merchant in pursuit of a fleeing shoplifter is killed accidentally (by falling and striking his head on the curb or being hit by a passing automobile), the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the time of the entry into the store. (Cf. People v. Earl, supra, 29 Cal.App.3d 894.) Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with a premeditated murder. In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder rule which is to deter those engaged in felonies from killing negligently or accidentally. (People v. Washington, supra, 62 Cal.2d 111, 781.) On the other hand, if the flight is divorced from the burglary the latter can be objectively evaluated as to its dangerous propensities, and the instant burglary would not be deemed dangerous to human life and would be outside the purview of the felony-murder rule. 

As was pointed out in People v. Earl, supra, 29 Cal.App.3d 894, 898, when the felony-murder statute was enacted in 1872, Penal Code section 459 required that the burglary occur in the nighttime and involve the entry of a “house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car . . . As defined, burglary was per se a crime dangerous to human life based on the probability of human occupancy of the described enclosures. Such danger to life was a common element in all of the felonies specified in section 189 (i.e., arson, rape, robbery, mayhem, or lewd acts upon a child). Contrary to the holding in People v. Talbot, supra, 64 Cal.2d at page 705, it rationally can be argued that the Legislature did not intend to include an automobile burglary within the felony-murder rule. This conclusion is strongly supported by the legislative classification of burglary into degrees. Penal Code section 460 provides that every burglary of an inhabited dwelling house, trailer coach, or building committed in the nighttime, is burglary of the first degree. All other kinds of burglary are of the second degree. It would be reasonable to include only first degree burglary in the Penal Code section 189 definition of felony murder.

Nonetheless, as previously explained the force of precedent requires the application of the first degree felony-murder rule to the instant case.

Respondents Also May Be Prosecuted for Second Degree Murder

For the guidance of the trial court, we observe that respondents may also be prosecuted for ordinary second degree murder. Second degree murder is an unlawful killing with malice aforethought but not willful, premeditated or deliberate. (People v. Jeter (1964) 60 Cal.2d 671 [36 Cal.Rptr. 323, 388 P.2d 355]; People v. Brust (1957) 47 Cal.2d 776, 783 [306 P.2d 480].) Malice is implied when the circumstances attending the killing demonstrate “an abandoned and malignant heart.” (Pen. Code, § 188.) This simply means that malice may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life. (People v. Washington, supra, 62 Cal .2d 111, 782.)

In People v. Pulley, supra, 225 Cal.App.2d 366, the defendants stole an automobile and got involved in a 75- to 80-mile-per-hour chase with the police. They ran through a red light and caused a multi-car collision, killing one of the drivers. The court stated: “By any reasonable standard, stealing and driving a stolen car and endeavoring to escape pursuing officers with the stolen car, entering an intersection against all rules of the road at 70 to 80 miles per hour and crashing with other cars lawfully proceeding therein, are highly dangerous. Violence in evading the police is within the ambit of risk. Death here was not a freak coincidence, but an expectable incident of the felony, part of the risk that is set in motion by the original crime.” (Id., at p. 373.) The court upheld the application of the second degree felony-murder rule based upon the automobile theft.

The Supreme Court subsequently disapproved Pulley on the ground that the court erroneously looked to the particular facts of the case in determining whether it was “inherently dangerous” so as to support a second degree felony murder conviction. (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.) However, the Supreme Court thereafter made clear that the Pulley fact pattern demonstrated sufficiently extreme and wanton recklessness to establish malice aforethought and second degree murder. (People v. Satchell, supra, 6 Cal.3d 28, 33-34, fn. 11; see also People v. Phillips, supra, 64 Cal.2d 574, 581; Note (1967) 55 Cal.L.Rev. 329, 340, fn. 58.)

Respondents contend that their conduct falls within a specific proscription of Penal Code section 192, subdivision 3, paragraph (a), vehicular manslaughter, the unlawful killing by a grossly negligent use of the automobile. They argue that where general and specific statutes both punish the same conduct, the specific must control. This argument is unavailing. The respondents’ conduct was more than grossly negligent. The conduct clearly presents an issue of fact as to whether or not respondents exhibited a wanton and reckless disregard for human life. Respondents drove at high speeds through main thoroughfares of Fresno in an attempt to elude Officer Ballesteroz. At one point in the chase they drove on the wrong side of Herndon Avenue and caused oncoming cars to swerve off of the road to avoid a head-on collision. They then made a U-turn and sped back to Blackstone Avenue, ran a red light and caused other traffic to stop to avoid a collision. Respondents then drove down Blackstone at speeds estimated between 60 and 75 miles per hour and headed straight at two oncoming police vehicles which were attempting to block their flight. Respondents did not reduce their speed as they approached the officers’ vehicles, and only a last minute maneuver by the officers avoided a possible fatal collision. At the next intersection respondents’ vehicle which “hadn’t slowed down very much” ran the red light and struck and killed the driver of the other car. Under these facts the foreseeability of serious injury or death was apparent to respondents. (Cf. People v. Pulley, supra, 225 Cal.App.2d at p. 373; see Witkin, Cal. Crimes (1978 Supp.) § 327, p. 327.) In light of the Supreme Court’s language in People v. Satchell, supra, 6 Cal.3d 28, that a high speed flight from police in an automobile may support a second degree murder conviction, the respondents’ argument must fail.

The judgment is reversed.

Hopper, J., concurred.

Ginsburg, J.,* concurred only in the reversal of the judgment of dismissal.

Respondents’ petitions for a hearing by the Supreme Court were denied February 8, 1979. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the petitions should be granted.

***

No. 82,647

State of Kansas, Appellee, v. Sanexay Sophophone, Appellant.

(19 P.3d 70)

Opinion filed March 9, 2001.

Ralph J. DeZago, of Herington, argued the cause and was on the brief for appellant. Sanexay Sophophone, appellant, supplemental brief pro se.

No appearance by appellee.

The opinion of the court was delivered by

Larson, J.:

This is Sanexay Sophophone’s direct appeal of his felony-murder conviction for the death of his co-felon during flight from an aggravated burglary in which both men participated.

The facts are not in dispute. Sophophone and three other individuals conspired to and broke into a house in Emporia. The resident reported the break-in to the police.

Police officers responded to the call, saw four individuals leaving the back of the house, shined a light on the suspects, identified themselves as police officers, and ordered them to stop. The individuals, one being Sophophone, started to run away. One officer ran down Sophophone, hand-cuffed him, and placed him in a police car.

Other officers arrived to assist in apprehending the other individuals as they were running from the house. An officer chased one of the suspects later identified as Somphone Sysoumphone. Sysoumphone crossed railroad tracks, jumped a fence, and then stopped. The officer approached with his weapon drawn and ordered Sysoumphone to the ground and not to move. Sysoumphone was lying face down but raised up and fired at the officer, who returned fire and killed him. It is not disputed that Sysoumphone was one of the individuals observed by the officers leaving the house that had been burglarized.

Sophophone was charged with conspiracy to commit aggravated burglary, K.S.A. 21-3302; aggravated burglary, K.S.A. 21-3716; obstruction of official duty, K.S.A. 21-3808; and felony murder, K.S.A. 21-3401(b).

Sophophone moved to dismiss the felony-murder charges, contending the complaint was defective because it alleged that he and not the police officer had killed Sysoumphone and further because he was in custody and sitting in the police car when the deceased was killed and therefore not attempting to commit or even fleeing from an inherently dangerous felony. His motion to dismiss was denied by the trial court.

Sophophone was convicted by a jury of all counts. His motion for judgment of acquittal was denied. He was sentenced on all counts. He appeals only his conviction of felony murder.

Our jurisdiction is under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed).

Sophophone’s counsel contends (1) State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), should be overruled insofar as it allows criminal responsibility for a co-felon’s death, (2) he cannot be convicted of felony murder of a co-felon caused by a police officer while he was in custody, and (3) there was not sufficient evidence to support his conviction.

Sophophone’s supplemental pro se brief raises contentions 1 and 2 above and further contends that the complaint/information was fatally or jurisdictionally defective.

We consider only the question of law, upon which our review is unlimited, of whether Sophophone can be convicted of felony murder for the killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting in self-defense in the course and scope of his duties in apprehending the co-felon fleeing from an aggravated burglary.

The applicable provisions of K.S.A. 21-3401 read as follows:

“Murder in the first degree is the killing of a human being committed:

“(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.”

Aggravated burglary is one of the inherently dangerous felonies as enumerated by K.S.A. 21-3436(10).

Sophophone does not dispute that aggravated burglary is an inherently dangerous felony which given the right circumstances would support a felony-murder charge. His principal argument centers on his being in custody at the time his co-felon was killed by the lawful act of the officer which he contends was a “break in circumstances” sufficient to insulate him from further criminal responsibility.

This “intervening cause” or “break in circumstances” argument has no merit under the facts of this case. We have held in numerous cases that “time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony and the defendant is therefore subject to the felony-murder rule.” See, e.g. State v. Kaesontae, 260 Kan. 386, Syl. ¶ 1, 920 P.2d 959 (1996); State v. Rider, Edens & Lemons, 229 Kan. 394, Syl. ¶ 4, 625 P.2d 425 (1981); State v. Hearron, 228 Kan. 693, Syl. ¶ 2, 619 P.2d 1157 (1980) Based on the uncontroverted evidence in this case, the killing took place during flight from the aggravated burglary, and it is only because the act which resulted in the killing was a lawful one by a third party that a question of law exists as to whether Sophophone can be convicted of felony murder.

The history of felony murder in Kansas is well chronicled in Hoang, 243 Kan. at 43-44, and need not be repeated here. The changes that have taken place during the 13 years since Hoang was decided have mainly related to enumeration of the specific inherently dangerous felonies that are subject to felony murder (K.S.A. 21-3436) and the 1992 Legislative change in K.S.A. 21-3401 to state that murder in the first degree includes the killing of a human being committed “(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony . . . .” L. 1992, ch. 298, § 3.

Prior to the enumeration of specific felonies that are statutorily deemed to be inherently dangerous, appeals often turned on the question of whether the collateral felony would support the application of the felony-murder rule. We said, however, in State v. Brantley 236 Kan. 379, 380-81, 691 P.2d 26 (1984):

“Although a literal application of K.S.A. 21-3401 would allow any felony to support a charge of felony murder so long as a causal relation exists, we have never allowed the doctrine to be applied so broadly. The purpose of the felony murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and it should not be extended beyond the rational function it was designed to serve.”

See State v. Vontress, 266 Kan. 248, 262, 970 P.2d 42 (1998); State v. Thompkins, 263 Kan. 602, 609, 952 P.2d 1332 (1998).

There was wording in Brantley concerning the killing being negligently or accidentally accomplished. This followed the result in State v. Branch & Bussey, 223 Kan. 381, 383-84, 573 P.2d 1041 (1978), where a killing was accidental but committed by Bussey during a robbery incidental to a drug deal, and we broadly stated:

“We conclude that any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit die felony, whether the deadi was intentional or accidental, or whether die participant directly caused it to occur. (See, State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Turner, [193 Kan. 189, 392 P.2d 863 (1964)]; State v. Bundy, 147 Kan. 4, 75 P.2d 236.)”

We have also stated that another purpose for the felony-murder doctrine “is to relieve the state of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony.” State v. Clark, 204 Kan. 38, 43, 460 P.2d 586 (1969).

Our cases are legion in interpreting the felony-murder statute, but we have not previously decided a case where the killing was not by the direct acts of the felon but rather where a co-felon was killed during his flight from the scene of the felony by the lawful acts of a third party (in our case, a law enforcement officer).

A similar scenario took place in State v. Murrell, 224 Kan. 689, 585 P.2d 1017 (1978), where Murrell was charged with felony murder for the death of his co-felon who had been shot by the robbery victim who had returned gunfire from Murrell. However, Murrell was acquitted of felony murder and his appeal involved only issues relating to his other convictions. 224 Kan. at 690.

Although there were clearly different facts, we held in Hoang, 243 Kan. at 42-46 that felony murder may include the accidental death of a co-felon during the commission of arson. The decedents had conspired with Hoang to burn down a building housing a Wichita restaurant/club but died when they were trapped inside the building while starting the fire. Hoang was an active participant in the felony and present at the scene, although he remained outside the building while his three accomplices entered the building with containers of gasoline to start the fire.

We held, in a split decision, that the decedents were killed during the perpetration of a felony inherently dangerous to human life and there was nothing in the statute to exclude the killing of co-felons from its application. 243 Kan. at 46. It must be pointed out that the facts in Hoang involved the wrongful acts of a co-felon which were directly responsible for the deaths of his co-felons.

The dissent in Hoang noted that in previous cases the felony-murder rule had been applied only to the deaths of innocents and not to the deaths of co-felons. The result was deemed by the dissent to be contrary to legislative intent and the strict construction of criminal statutes that is required. 243 Kan. at 46-47.

With this brief background of our prior Kansas cases, we look to the prevailing views concerning the applicability of the felony-murder doctrine where the killing has been caused by the acts of a third party. The two different approaches applicable are succinctly set forth in Comment Kansas Felony Murder: Agency or Proximate Cause? 48 Kan. L. Rev. 1047, 1051-52 (2000), in the following manner:

“There are two basic approaches to application of the felony-murder doctrine: die agency and proximate cause theories. The agency approach, which is the majority view, limits application of the doctrine to those homicides committed by die felon or an agent of the felon. Under such an approach, ‘[t]he identity of the killer becomes the threshold requirement for finding liability under the felony-murder doctrine.’

“The proximate cause approach provides that liability attaches 'for any death proximately resulting from the unlawful activity — even the death of a co-felon— notwithstanding the killing was by one resisting die crime.’ ” Under the proximate cause approach, felony murder may preclude consideration of the deceased’s identity, which would make a defendant liable for all deadis caused by others during the crime. Application of the proximate cause varies greatly by jurisdiction because the statutes differ substantially. The proximate cause approach becomes controversial when the homicide is committed by someone other than die felons, but only a minority of jurisdictions follow this approach.”

In Dressier, Understanding Criminal Law, § 31.07[4] Killing by a Non-Felon, pp. 471-72 (1987), the question is posed of whether the felony-murder rule should apply when the fatal act is performed by a non-felon. Dressier states:

“This issue has perplexed courts. Two approaches to the question have been considered and applied by the courts.

“[b] The ‘Agency’ Approach

“The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon. . . .

“The reasoning of this approach stems from accomplice liability theory. Generally speaking, the acts of the primary party (the person who directly commits the offense) are imputed to an accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary party: ‘Your acts are my acts.’ It follows that [a co-felon] cannot be convicted of the homicides because the primary party was not the person with whom she was an accomplice. It is not possible to impute the acts of the antagonistic party — [the non-felon or] the police officer — to [a co-felon] on the basis of agency.

“[c] The ‘Proximate Causation’ Approach

“An alternative theory, followed by a few courts for awhile, holds that a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim’s deadly.

“Pursuant to this rule, the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the non-felon] or the police officer, murder liability is permitted.”

In 2 LaFave & Scott, Substantive Criminal Law, § 7.5(d), pp. 217-18 (1986), the author opines: “Although it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander, it is not easy to explain why this is so.”

The author discusses forseeability and that it is not correct to say that a felon is never hable when the death is lawful because it is “justifiable” and goes on to state:

“A more plausible explanation, it is submitted, is the feeling that it is not justice (though it may be poetic justice) to hold the felon liable for murder on account of the death, which the felon did not intend, of a co-felon willingly participating in the risky venture. It is true that it is no defense to intentional homicide crimes that the victim voluntarily placed himself in danger of death at the hands of the defendant, or even that he consented to his own death: a mercy killing constitutes murder; and aiding suicide is murder unless special legislation reduces it to manslaughter. But with unintended killings it would seem proper to take the victim’s willing participation into account. . . .”

As we noted in Hoang, it is not very helpful to review case law from other states because of differences in statutory language; however, the high courts which have considered this precise question are divided between the agency approach and the proximate cause approach.

The leading case adopting the agency approach is Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472 (1958), where the underlying principle of the agency theory is described as follows:

“In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the felony-murder doctrine.”

The following statement from Redline is more persuasive for Sophophone:

“In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere question carries with it its own answer.” 391 Pa. at 509.

For a listing of states whose courts have adopted the agency theory, see Annot. Criminal Liability Where Act Of Killing Is Done By One Resisting Felony Or Other Unlawful Act Committed By Defendant, 56 A.L.jR. 3rd 239; Annot. Application of Felony-Murder Doctrine Where Person Killed was Co-Felon, 89 A.L.R. 4th 683, § 10[b], ll[b], 12[b].

The minority of the states whose courts have adopted the proximate cause theory believe their legislatures intended that any person, co-felon, or accomplice who commits an inherently dangerous felony should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply the civil law concept of proximate cause to felony-murder situations.

States which have so held are listed in Annot. 89 A.L.R. 4th 683 § 10[a], ll[a], 12[a].

It should be mentioned that some courts have been willing to impose felony-murder liability even where the shooting was by a person other than one of the felons in the so-called “shield” situations where it has been reasoned “that a felon’s act of using a victim as a shield in compelling a victim to occupy a place or position of danger constitutes a direct lethal act against the victim.” Campbell v. State, 293 Md. 438, 451 n. 3, 444 A.2d 1034 (1982).

It has previously been suggested that the wording in Kaesontae, 260 Kan. 386, Syl. ¶ 1, relating to “time, distance, and the causal relationship between the underlying felony and the killing” should be interpreted to mean we have adopted the proximate cause approach. That is not the case as this phrase is one which relates to the question of whether the killing occurs during the commission of or flight from the underlying felony. The Kansas cases which have used this wording involved situations where the court was determining if the killing was sufficiently related to the felony in terms of time, distance, and causation in order to constitute felony murder. None of those cases hold that we have adopted the proximate cause approach to the killing of a co-felon by a third party.

Nor have we adopted the proximate cause approach because of our holding and language in State v. Shaw, 260 Kan. 396, 405, 921 P.2d 779 (1990), where we held that a defendant who bound and gagged a 86-year-old robbery victim with duct tape was hable for the victim’s death when he died of a heart attack while so bound and gagged. Although we may speak of causation in such a case, our ruling in Shaw is better described by quoting syllabus ¶ 2: “The victim must be taken as the defendant finds him. Death resulting from a heart attack will support a felony-murder conviction if there is a causal connection between the heart attack and the felonious conduct of the defendant.” This is not the embracing of a proximate cause approach under the facts we face.

An additional argument has been made that when we approved the language of PIK Crim. 3d 56.02 relating to the causation required by the law for felony murder in State v. Lamae, 268 Kan. 544, 555, 998 P.2d 106 (2000), we recognized that the killing could be perpetrated by the defendant or another. (Emphasis added). The case involved the death of a participant in a metfiamphetamine fire. Our opinion did state: “It is true that there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule. See State v. Underwood, 228 Kan. 294, 302, 615 P.2d 153 (1980). However, the general rules of proximate cause used in civil actions do not apply.” (Emphasis added.) 268 Kan. at 555. This language, if taken in isolation, is much more favorable to Sophophone’s position. However, we believe that neither this statement nor the “or another” language in Lamae should be given undue consideration when we resolve the different question we face here.

There is language in K.S.A. 21-3205(2) that predicates criminal responsibility to an aider or abettor for “any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” This wording does not assist us for the killing of the co-felon in our case where it was the lawful act by a law enforcement officer who was in no manner subject to these aider and abettor provisions.

The overriding fact which exists in our case is that neither Sophophone nor any of his accomplices “killed” anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon. This does not fall within the language of K.S.A. 21-3205 since the officer committed no crime.

When the 1992 Kansas Legislature made extensive amendments to our criminal code, including K.S.A. 21-3401, one of the stated goals was to “conform the code to the majority of states’ laws when doing so was not clearly contrary to the Legislature’s intent.” See Comment 48 Kan. L. Rev. 1047, 1055 n. 68. But, this provides no insight to the problem we face and certainly does not require us to adopt the agency approach which the majority of the jurisdictions in the United States do follow.

Of more assistance to us is our long-time rule of statutory interpretation:

“[Cjriminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).

It appears to the majority that to impute the act of killing to Sophophone when the act was the lawful and courageous one of a law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes. There is considerable doubt about the meaning of K.S.A. 21-3401(b) as applied to the facts of this case, and we believe that making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written. Cf. State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001) (felon may not be convicted of felony murder for the killing of his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated robbery and kidnapping acting in self-defense for the protection of his residence and the property thereof).

It does little good to suggest one construction over another would prevent the commission of dangerous felonies or that it would deter those who engage in dangerous felonies from killing purposely, negligently, or accidentally. Actually, innocent parties and victims of crimes appear to be those who are sought to be protected rather than co-felons.

We hold that under the facts of this case where the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of Somphone Sysoumphone, and his felony-murder conviction must be reversed.

This decision is in no manner inconsistent with our rulings in Hoang or Lamae, which are based on the direct acts of a co-felon and are simply factually different from our case. Sophophone’s request that State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), be overruled is denied.

Reversed.

Abbott, J.,

dissenting: The issue facing the court in this case is whether Sophophone may be legally convicted under the felony-murder statute when he did not pull the trigger and where the victim was one of the co-felons. The majority holds that Sophophone cannot be convicted of felony murder. I dissent.

An analysis of this issue must begin with an examination of the murder statute. K.S.A. 21-3401 provides:

“Murder in the first degree is the killing of a human being committed:

“(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.”

When an issue requires statutory analysis and the statute is unambiguous, we are limited by the wording chosen by the legislature. We are not free to alter the statutory language, regardless of the result. In the present case, the felony-murder statute does not require us to adopt the “agency” theory favored by the majority. Indeed, there is nothing in the statute which establishes an agency approach. The statute does not address the issue at all. The requirements, according to the statute, are: (1) there must be a killing, and (2) the killing must be committed in the commission, attempt to commit, or flight from an inherently dangerous felony. The statute simply does not contain the limitations discussed by the majority. There is nothing in K.S.A. 21-3401 which requires us to adopt the agency approach or that requires Sophophone to be the shooter in this case. The facts in this case, in my opinion, satisfy all of the requirements set forth in K.S.A. 21-3401(b).

Moreover, there are sound reasons to adopt the proximate cause approach described in the majority opinion. In State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), this court took such an approach, although never referring to it by name. In Hoang, Chief Justice McFarland, writing for the court, discussed at length the requirements of the felony-murder rule in Kansas and stated:

“In felony-murder cases, the elements of malice, deliberation, and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction for felony murder, all that is required is to prove that a felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony. In a felony-murder case, evidence of who the triggerman is is irrelevant and all participants are principals. [Citations omitted.]

“The puipose of the felony-murder doctrine is to deter all those engaged in felonies from killing negligently or accidentally. . . .

“It is argued in the case before us that felony murder applies only to the deaths of Innocents’ rather than co-felons. There is nothing in our statute on which to base such a distinction. . . .

“Dung and Thuong, the decedents herein, were human beings who were killed in the perpetration of a felony. . . . Defendant was an active participant in die felony and present on the scene during all pertinent times. There is nothing in the statute excluding the killing of the co-felons herein from, its application. For this court to exclude the co-felons would constitute judicial amendment of a statute on philosophic rather than legal grounds. This would be highly improper. The legislature has defined felony murder. If this definition is to be amended to exclude the killing of co-felons therefrom under circumstances such as are before us, it is up to the legislature to make such an amendment.” 243 Kan. at 41-42, 45-46. (Emphasis added.)

It is not this court’s prerogative to decide what is and is not felony murder. That is a legislative function.

Hoang was decided in 1988, almost 13 years ago. The legislature has not amended or altered K.S.A. 21-3401 since that time to prevent the felony-murder statute from being used when the victim is a co-felon or where the defendant’s actions are not the immediate cause of the death. The majority states that the decision in this case is not inconsistent with the ruling in Hoang. I disagree. The language in Hoang warns of the dangers of judicial reconstruction and statutory revisionism; however, the majority has taken that approach regardless. Although the facts in Hoang are not identical to the facts in this case, the differences are inconsequential. In my opinion, Hoang is still good law and provides ample justification to apply the felony-murder rule to Sophophone.

The majority in this case points out that the majority of states have adopted the agency approach when faced with the death of a co-felon. They acknowledge, however, that because statutes vary significantly from state to state, reference to a “majority” rule and a “minority” rule is meaningless. Indeed, an in-depth analysis of the current case law in this area leads me to the following conclusions: (1) While a majority of states would agree with the majority opinion in this case, the margin is slim; (2) many of the states that have adopted the so-called “agency” approach have done so because the statutory language in their state requires them to do so; and (3) several of the states that have adopted the “proximate cause” approach have done so because their statutes are silent on the issue, like Kansas.

The following courts have used a proximate cause approach instead of following the agency theory adopted by the majority in this case. Several of the following cases also involve factual situations where the co-felon was killed by a police officer, as is the situation in the present case. See State v. Lopez, 173 Ariz. 552, 556, 845 P.2d 478 (Ct. App. 1993) (affirming felony-murder conviction where police officer shot co-felon while defendant was already under arrest by using the proximate cause approach as set forth by Arizona statute); State v. Wright, 379 So.2d 96, 96-97 (Fla. 1980) (holding that there was nothing in the Florida felony-murder statute which limited application to “innocent persons killed” by the defendant); People v. Dekens, 182 Ill. 2d 247, 252, 695 N.E.2d 474 (1998) (Illinois follows the proximate cause theory of felony murder); Jenkins v. State, 726 N.E.2d 268, 269-70 (Ind. 2000) (holding that Indiana felony-murder statute does not require the victim to be “innocent” and that defendant could be convicted of felony murder where robbery victim shot and killed co-felon); Palmer v. State, 704 N.E.2d 124, 125-26 (Ind. 1999) (affirming felony-murder conviction where co-felon was shot by police officer); State v. Baker, 607 S.W.2d 153, 156-57 (Mo. 1980) (affirming conviction where death was a proximate result of the acts of the defendant and his accomplices); State v. Blackmon, 587 S.W.2d 292, 293 (Mo. Ct. App. 1979) (affirming felony-murder conviction where victim was shot by an off-duty police officer); State v. Burton, 130 N.J. Super. 174, 178-79, 325 A.2d 856 (1974) (affirming felony-murder conviction where police killed co-felon during commission of a robbery and where statutory language indicated a preference for the proximate cause approach); In re Leon, 122 R.I. 548, 554-55, 410 A.2d 121 (1980) (taking a proximate cause approach and holding that defendant could be convicted of felony murder where the victim was a co-felon); State v. Oimen, 184 Wis. 2d 423, 435, 516 N.W.2d 399 (1994) (adopting proximate cause approach where co-felon was killed by burglary victim).

Some courts have been forced to take an agency approach because of the statutory language contained within their felony-murder statutes. See Weick v. State, 420 A.2d 159, 161-63 (Del. 1980) (reversing second-degree murder conviction where victim killed co-felon because statute requires that “he, with criminal negligence, causes the death of another person”); State v. Jones, 859 P.2d 514, 515 (Okla. Crim. 1993) (taking an agency approach because statute provides that the person committing the felony must “take the life of a human being”); State v. Hansen, 734 P.2d 421, 427 (Utah 1986) (holding that state law precluded second-degree felony-murder conviction where co-felon is killed because language in statute requires the death to be “other than a party” to the crime).

As noted in Hoang, references to cases from other jurisdictions, regardless of the “majority” or “minority” rule, is unnecessary because the statutory language, if unambiguous, should control the outcome. 243 Kan. at 44-46.

In my opinion, our statute is unambiguous and simply does not require the defendant to be the direct cause of the victim’s death, nor does it limit application of the felony-murder rule to the death of “innocents.”

In People v. Lowery, 178 Ill.2d 462, 687 N.E.2d 973 (1997), the Illinois Supreme Court discussed the public policy reasons justifying application of a proximate cause approach, stating:

“It is equally consistent with reason and sound public policy to hold that when a felon’s attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions. [Citations omitted.]” 178 Ill. 2d at 467.

In Sheckles v. State, 684 N.E.2d 201 (Ind. Ct. App. 1997), the Indiana Court of Appeals opined:

“[A] person who commits or attempts to commit one of the offenses designated in the felony-murder statute is criminally responsible for a homicide which results from the act of one who was not a participant in the original criminal activity. Where the accused reasonably should have . . . foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death at the hands of a nonparticipant in the felony, and where death in fact occurs as was foreseeable, the creation of such a dangerous situation is an intermediary, secondary, or medium in effecting or bringing about the death of the victim.” 684 N.E.2d at 205.

Likewise, the Supreme Court of New Jersey discussed the historical justification for application of the proximate cause rule in felony-murder cases in State v. Martin, 119 N.J. 2, 573 A.2d 1359 (1990), stating:

“More recently, felony murder has been viewed not as a crime of transferred intent, but as one of absolute or strict liability. Whether the offense is viewed as a crime of transferred intent or as one of absolute liability, the continuing justification for the felony-murder rule is that in some circumstances one who commits a felony should be liable for a resulting, albeit unintended, death. Conversely, other deaths are so remotely related to the underlying felony that the actor should not be held culpable for them. Our task is to ascertain the circumstances in which the Legislature has decided that one who commits a felony should also be culpable for a resulting death.

“The historical justification for the rule is that it serves as a general deterrent against the commission of violent crimes. [Citation omitted.] The rationale is that if potential felons realize that they will be culpable as murderers for a death that occurs during the commission of a felony, they will be less likely to commit the felony. From this perspective, the imposition of strict liability without regard to the intent to kill serves to deter the commission of serious crimes.” 119 N.J. at 20.

Here, Sophophone set in motion acts which would have resulted in the death or serious injury of a law enforcement officer had it not been for the highly alert law enforcement officer. This set of events could have very easily resulted in the death of a law enforcement officer, and in my opinion this is exactly the type of case the legislature had in mind when it adopted the felony-murder rule.

The majority has opened a Pandora’s box and left the law grossly unsettled. It does not take much imagination to see a number of situations where a death is going to result from an inherently dangerous felony and the majority’s opinion is going to prevent the accused from being charged with felony murder.

If there is to be a change in the law, it should be by the legislature and not by this court adopting a statutory scheme set forth by the legislatures of other states. I would continue to follow the proximate cause theory of liability for felony murder which holds that criminal liability attaches for any death proximately resulting from the unlawful activity notwithstanding the fact that the killing was by one resisting the crime.

I would affirm the conviction based upon the statutory language found in K.S.A. 21-3401, the decision in Hoang, and the cases cited from other jurisdictions.

McFarland, C.J., and Davis, J., join in the foregoing dissenting opinion.

321 Md. 532 (1991)

583 A.2d 718

STEVEN SAUNDERS GIROUARD

v.

STATE OF MARYLAND.

No. 65, September Term, 1989.

Court of Appeals of Maryland.

January 8, 1991.

COLE, Judge.

In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of murder to manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.

The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom….

[Steven testified that Joyce followed him into the bedroom, and their fight escalated. Joyce repeatedly insulted him and told him that “the marriage had been a mistake.”] 

[Steven] left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking.… Joyce reiterated that the marriage was a big mistake, that she did not love him and that the divorce would be better for her….

[Steven then] lunged at her with the kitchen knife he had hidden behind the pillow and stabbed her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood. Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how much he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene….

Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended…. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.

Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant's; or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. [Petitioner] argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

The State counters by stating that although there is no finite list of legally adequate provocations, the common law has developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation. According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argument ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven's second degree murder charge to voluntary manslaughter.

Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool." 

There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. 

In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay the template of the so-called "Rule of Provocation." The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been a causal connection between the provocation, the passion, and the fatal act.

We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be "calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason." The issue we must resolve, then, is whether the taunting words uttered by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.

Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are not adequate provocation. ….[W]ords can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. …

Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation. …

Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. … The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the offending spouse.

We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.

JUDGMENT AFFIRMED WITH COSTS.

686 P.2d 1001 (1984)

297 Or. 375

STATE of Oregon, Respondent On Review,

v.

Calvin Roy OTT, Petitioner On Review.

No. TC 80-522-C, CA A23254, SC 29428.

Supreme Court of Oregon, In Banc.

Argued and Submitted August 2, 1983.

Decided July 10, 1984.

LENT, Justice.

The primary issue is how a jury is to be instructed on "extreme emotional disturbance" for the purpose of determining whether a criminal homicide is murder or manslaughter. The defendant was charged with murder for killing his wife in April, 1980. It is undisputed that the defendant killed her intentionally; the dispute is whether he was under the influence of extreme emotional disturbance. If he was, he would be guilty of manslaughter rather than murder.

At that time ORS 163.115 provided:

(1) * * * [C]riminal homicide constitutes murder when:

(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance.

* * *

(2) For the purposes of paragraph (a) of subsection (1) of this section, a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be.

…

The defendant was convicted of murdering his wife. At trial he did not contest the accusation that he killed her intentionally. Instead, he adduced evidence to mitigate the charge of murder to that of manslaughter by showing that he was under the influence of an extreme emotional disturbance during the killing.

The Evidence

A description of the evidence and the facts which could be found therefrom as perceived by the defendant is relevant to the question of whether he could have been found by the jury to be under the influence of extreme emotional disturbance when he committed the criminal homicide, thereby necessitating an instruction on extreme emotional disturbance. There was evidence of the following:

The defendant exhibited instability after his discharge from the Air Force in 1972. He "drifted in various parts of the United States" and put "very little order to his life." In 1975 he returned to his mother's home in Grants Pass and stayed there intermittently.

At some point after his return to Grants Pass, he began to cohabit with a woman who had three children. This lasted for a little over a year. The woman then asked the defendant to move out because of his drinking and unannounced disappearances. She was three months' pregnant by him at the time.

The defendant then enrolled at Rogue Community College at Grants Pass. There he met the now deceased Stephanie Elaine Brinkley, whom he married three weeks after their initial meeting. Some months after their marriage, they had a fight over "money matters" and separated. ...

Defendant attempted to return to his wife; however, she had begun seeing someone else. Defendant attempted to fight Stephanie's new lover. Stephanie intervened, sent her new lover away and promised that her conduct would not be repeated.

There were other separations, and the defendant, upon his return from each separation and his learning of more infidelities, became progressively more upset. This was especially so after the birth of their first child. …

He had been warned by the "authorities" to stay away from Stephanie. She apparently caused him to be placed under a judicial restraining order; however, despite her obtaining the order, Stephanie telephoned him regarding their divorce. They engaged in an apparently protracted series of arguments on the telephone over child custody, which eventuated in the defendant's arrest and jailing for harassment. Even though they engaged in arguments and fights, they continued to associate. Defendant could not stay away from Stephanie and Stephanie did not always discourage his attentions.

In 1980 Stephanie began to live with another man. This conduct affected the defendant, as before, with tension and "stress." The defendant's reaction was even more intense than before, and he threatened to kill Stephanie on several occasions.

In early April, 1980, Stephanie's son, Jonathan (defendant's stepson), broke his arm and was in the hospital. The defendant and Stephanie met each other at the hospital in order to visit with the child on three occasions. It was arranged that on the third occasion the defendant was to drive Stephanie home after hospital visiting hours were over. Defendant had the impression from their first two meetings at the hospital that the relationship was improving. He was thus angered and disappointed when his wife's new lover appeared at the hospital on their third meeting to take her home. Defendant left the hospital in a state of agitation. He retrieved a .22 rifle that he had stored at the home of a friend, caught up with his wife and her lover, ran their truck off the road and shot his wife three times. ...

History of Mitigating Factor

Before addressing how a jury should be charged in a case where the influence of extreme emotional disturbance may reduce an intentional criminal homicide from murder to manslaughter, we pause to examine the history of the mitigating factor.

The defense of extreme emotional disturbance is a modification of the defense of provocation or heat of passion. The provocation defense is very old. The distinction between a slaying in cold blood and one in the heat of passion existed in Anglo-Saxon criminal law and survived the Norman conquest of 1066. The "Doctrine of Provocation" became firmly established in the law in 1628 when Coke adopted the distinction between homicide committed after deliberation and homicide committed in the course of a sudden quarrel… Then, as now, manslaughter … depended on the presence of heat of passion caused by adequate provocation. …

In the mid-nineteenth century, the judgment as to whether a provocation was adequate for the heat of passion defense was made by the judge as a determination of law; however, judges gradually began to leave borderline cases to the jury. The reasonable man standard of review for provocation was devised as a manner of instructing the jury on marginal cases. It was also a device for enabling the jury to serve as community conscience or standard of measure for reasonable behavior. …

This has been said to be an objective test, meaning that neither the mental nor physical peculiarities of the accused are evaluated in determining whether his loss of self-control was reasonable. …

The common law heat of passion or provocation defense placed the jury in the conceptually awkward (to put it kindly) position of having to determine when it is reasonable for a reasonable man to act unreasonably. (Granville Williams, Provocation and the Reasonable Man, 1954 Crim.L.Rev. 740, 742).

Another writer comments that: "Abandonment of the reasonable man standard would simplify the jury's task because the inquiry into the accused's own mental state is more concretely grounded in reality than are conjectures about a mythical reasonable man."

The Model Penal Code [adopted by Oregon in 1970]

The drafters of the Model Penal Code were aware of the anomaly and pointed out that harsh and unjust results were obtained from applying the objective test for provocation. They cited State v. Gounagias, 88 Wash. 304, 153 P. 9 (1915), as a model of an unjust result achieved through application of the objective test for provocation. …

[That case involved a defendant who, humiliated after being raped by a man in his community, asked him not to tell others about the incident. The assailant persisted in spreading the story, which resulted in defendant’s being shamed and isolated from his community. After an angry confrontation with the assailant, defendant went home, got a gun and returned to kill the assailant. The court denied defendant’s request for mitigation from murder to manslaughter, finding Gounagias has waited too long after the original incident for provocation to be invoked.]

The drafters of the Model Penal Code found it "shocking" to disregard that the passage of time served only to increase rather than diminish Gounagias' outrage as the story became known. Model Penal Code Tentative draft No. 9 § 201.3 at 48. They said:

"…in such a situation as Gounagias, where lapse of time increased rather than diminished the extent of the outrage perpetrated on the actor, as he became aware that his disgrace was known, it was shocking in our view to hold this vital fact to be irrelevant. …"

[in 1971, Oregon revised its homicide law along the lines of the Model Penal Code, to provide: "a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be." (italics added)]

The Trial Court's Instruction

[At the close of the trial, the court instructed the jury using the above statutory language. As is common practice, it provided additional instructions, which included the following]:

"I instruct you that the concept of extreme emotional disturbance involves several issues, all of which must be considered by you. One, the homicidal act must have been committed under the influence of an extreme emotional disturbance, and two, the extreme emotional disturbance must not be the result of the Defendant's own intentional, knowing, reckless or criminally negligent act. Thus, a person may not form an intent to commit murder and later because of that intent become extremely emotionally disturbed, and three, the extreme disturbance must be an extreme emotional disturbance. You are instructed that there are varying degrees of emotional disturbance. Not every disturbance is an extreme emotional disturbance in the law. In determining what the term extreme means with reference to extreme emotional disturbance I instruct you that the term means the outermost or furthest, most remote in any direction, final or last, and four, there must be a reasonable explanation to the extreme emotional disturbance and its resulting homicidal act.” [italics added]

Both in the trial court and on appeal the defendant has argued that the term "extreme emotional disturbance" is made up of words of ordinary meaning, not given any special definition by the legislature and, therefore, there is no reason or need for a trial court to enlarge upon them for the benefit of the jury. …

We agree with the defendant that the jury should be instructed on the meaning of the whole term rather than singling out the word "extreme" for amplification. The point of the extreme emotional disturbance defense is to provide a basis for mitigation that differs from a finding of mental defect or disease to such an extent as altogether to preclude criminal responsibility.

… The notion of "extreme" provided for the jury … is consonant with an understanding of emotional disturbance that might preclude criminal responsibility. The words "outermost or furthest, most remote in any direction, final or last," as used by the court to define "extreme," would seem to require a state of mind so far from the norm as to be characteristic of a mental illness. The defense was meant to be understood in more relative terms as referring to a loss of self-control due to intense feelings.

…

We have still to determine how a jury is to determine whether there was a reasonable explanation for the emotional disturbance. This is a sensitive task because the Oregon statute requires that the "reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person," ORS 163.135(1). On the other hand, the statute requires that the reasonableness of the interpretation must be judged from the standpoint of "the actor's situation under the circumstances as the actor reasonably believes them to be." The juxtaposition of these two requirements for determining the adequacy of the explanation prevents the adequacy from being determined on either wholly objective or subjective grounds. The words "ordinary person" and "reasonableness of the explanation" recall the reasonable man standard of the heat of passion defense, which is an objective test, while the requirement of taking into account the actor's situation suggests a more subjective analysis…

Donovan and Wildman in their article, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, hypothesize the following example:

An Asian-American man, Harold Sato, who had been interned in a detention camp for Japanese during World War II, faces repeated racial prejudice at his job. One day after repeated racial slurs from a co-worker he kills the co-worker. 14 Loyola L.Rev. 435, 438 (1981). 

The authors observe:

The anomaly of a purely objective standard of provocation is underlined by Mr. Sato's case. * * * A reasonable man, viewed in the abstract, is not likely to be roused to the heat of passion by a verbal insult. However, an Asian-American who had been interned in a concentration camp is likely to be roused to the heat of passion by racial slurs. To the extent that a jury is not allowed to consider Mr. Sato's racial background and previous experience of racial discrimination in determining his moral culpability, Mr. Sato is more likely to be convicted of murder * * * than of voluntary manslaughter. Id at 449.

By requiring the factfinder to focus on a person in the defendant's "situation," the drafters of the Model Penal Code sought to work change. One writer, relying upon the Model Penal Code commentary, has put it:

[I]t makes the test more, although not entirely, subjective, by requiring the jury to test the reasonableness of the actor's conduct, ‘from the viewpoint of a person in the actor's situation.’ Thus, the actor's sex, sexual preference, pregnancy, physical deformities, and similar characteristics are apt to be taken into consideration in evaluating the reasonableness of the defendant's behavior. (Footnotes omitted.) Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 Journal of Criminal Law and Criminology 421, 431 (1982).

…

Conclusion

Given the hybrid approach adopted by the legislature to the weight to be accorded to subjective and objective factors in the calculus involved in this kind of case, we do not believe that any court can state a suggested jury instruction that is completely impervious to criticism of its logic. We must leave the trial courts and juries where the statute places them. Making the best of this situation, we conclude that a trial court's charge must be constructed for any particular case along the following general lines.

First, the jury's attention must be drawn to the relevant statutory text.

Second, the jury must be instructed as to the burden of persuasion on the issue.

Third, the jury should be asked to consider whether the homicide was committed under the influence of extreme emotional disturbance. It was if the defendant was under the influence of an emotional disturbance to the extent that he lost the capacity to control himself and forego the homicide. The jury should be instructed that if it finds that the homicide was not committed under the influence of extreme emotional disturbance, the jury need not further consider the issue of mitigation of murder to manslaughter. If the jury finds that the homicide was committed under the influence of extreme emotional disturbance, it must then consider other issues.

Fourth, the jury must determine whether the extreme emotional disturbance was the result of the defendant's intentional, knowing, reckless or criminally negligent act, and the meaning of those adjectives must be explained. If the jury finds that this causal relationship existed, it need not further consider the mitigation issue. If the jury finds this causal relationship not to exist, it must then consider the reasonableness of the explanation for the disturbance.

Fifth, the jury must determine what was the defendant's situation in the circumstances which the defendant reasonably believed to exist. The jury must then determine whether an ordinary person in that situation and those circumstances would have experienced extreme emotional disturbance.

In the case at bar, the trial court erred in instructing the jury …. The error went to the heart of the case. The error was not harmless. Defendant is entitled to a new trial.

Reversed and remanded for a new trial.

Notes and Questions

1.    Elements of Extreme Emotional Distress. The defendant must prove by a preponderance of the evidence that (a) the emotional disturbance is not a mental disease or defect equivalent to insanity, (b) the defendant experienced a particularly overwhelming situation, and (c) the defendant had an extreme emotional reaction to it, resulting in a loss of self-control, which was overcome by powerful emotions, such as passion, anger, or fear.  See State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979).

Per Model Penal Code Section 210.3:

(1) Criminal homicide constitutes manslaughter when: 

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

Why must a defendant prove his burden by only a preponderance of the evidence? Does this change make a mitigation to provocation more or less likely? How would you characterize the burden of proof in Girouard--who has to prove adequate provocation (the burden of proof) and by what standard of proof (beyond a reasonable doubt, clear and convincing evidence, a preponderance of the evidence, etc.)? 

2.    Another Hypothetical. A man from Kentucky by the name of Bob is the father of a seventeen year-old daughter, Annamae. He has never shown any propensity towards violence, nor does he generally look at acts of violence favorably. Bob holds a belief, however, that Californians are infected with a certain parasite that can kill Kentuckians with whom they are in physical contact. Bob sees Annamae talking with Chad, her friend from California. Bob also sees her touching his hand. Bob becomes fearful for Annamae’s life and tells Chad to let go of her hand. Chad lets go, looks at Bob in bewilderment, and says, “Dude, you gotta chill, what is going on?” This only makes Bob more furious because of Chad’s apparent lack of concern for Annamae’s safety, at which point Bob pulls out his revolver and shoots and kills Chad. In view of Ott, how should this case be analyzed? 

3.    Passion’s Progress. Can a more subjective analysis mitigate homicides? Many intimate partner homicides occur after “departure claims,” where the decedent announces in deeds, such as moving furniture out, or words, such as filing for divorce or stating future plans, that he/she is leaving the relationship. Professor Victoria Nourse, who compared cases that apply the MPC’s “extreme mental or emotional disturbance” standard to cases that use common law standards, found that 26% of MPC claims that reached juries involved “departure” claims, whereas none of these claims reached juries in jurisdictions using the common law approach. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1353 (1997). Essentially, when cases were able to reach juries, there was a question of fact that needed answering, which allowed for more evidence to be submitted. In many cases, the victim was killed when he/she moved furniture out, announced his/her departure, or filed for divorce. Professor Nourse further discovered that when a defendant in a criminal homicide case alleged infidelity after the relationship had ended, the case would reach the jury 88% of the time in MPC states versus 39% of the time in common law jurisdictions. Id. at 1362. With these results in mind, Professor Nourse concluded that the MPC produced “illiberal and often perverse” results. Id. at 1332. 

Based on these facts, should we specify statutory language to cover these sets of facts? What would an abolitionist approach to this problem look like? Could we avoid the harm entirely with more adequate support systems or affordable housing?  

For more on the nexus between housing insecurity and domestic violence, see John Pavao, Jennifer Alvarez, Nikki Baumrind, Marta Induni, and Rachel Kimerling’s Study: Intimate Partner Violence and Housing Instability. 

4.    Objective and Subjective. Recall the Oregon statute. What language in the Oregon statute suggests an objective standard of extreme emotional disturbance? What language suggests a subjective standard? If you were a prosecutor, which standard (objective or subjective) would you want to take precedence over the other? How would you make this argument? 

What about if you were practicing as a defense attorney? Is there a benefit to this hybrid approach? Is it confusing or flexible?

5.    Gender and the Law. Voluntary manslaughter has been said to “ha[ve] never been a female-friendly doctrine.” Emily L. Miller, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665, 667 (2001). Some scholars have even called for the abolition of the heat-of-passion factor, and the argument is summarized as follows:

Provocation is a male-centered and male-dominated defense. Although the defense is supposedly founded on compassion for ordinary human infirmity, it is really a legal disguise to partially excuse male aggression by treating men “as natural aggressors, and in particular women's natural aggressors.” Men who are provoked desire to inflict retaliatory suffering on those who have attacked their self-worth. More often than not, the self-worth “attackers'' are women. In studies of battered women, for example, violence is prompted by male possessiveness and sexual jealousy; a male's feelings of self-worth require “absolute possession of a woman's sexual fidelity, of her labour, and of (on demand) her presence, love, and attention in general.” In reality, therefore, the defense simply reinforces precisely what the law should seek to eradicate, namely, “men's violence against women, and their violence in general.” Joshua Dressler, Why Keep the Provocation Defense?: Some Reflections on A Difficult Subject, 86 Minn. L. Rev. 959, 975-976 (2002). 

Professor Nourse is in favor of keeping the provocation defense, but making it available in fewer circumstances, because “the defendant’s claim to our compassion must put him in a position of normative equality vis-a-vis his victim.” She further comments that this only exists when society “shares” the defendant’s rage, such that the provoker’s conduct would result in criminal punishment. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1396 (1997). Because adultery is no longer a crime in almost all jurisdictions, this would lead to a revocation of a provocation defense when a defendant kills in the heat of passion that stems from the victim’s infidelity. Thus, without any other defenses or mitigating factors available, the defendant would be guilty of murder.

Regarding viewpoints on keeping versus abolishing the defense, which of these do you find more persuasive? Would it be better to abolish provocation as a defense? Or do you think it would be better to retain the defense, and if so, do you prefer the common law heat-of-passion doctrine or the MPC’s “extreme mental or emotional disturbance” provision? 

6.      Abolition. If we were to abolish provocation as a mitigating factor, how might we replace it? Should it be replaced, or should it be removed entirely? The United Kingdom replaced provocation as a mitigating factor with the statutory partial defense called “loss of control” as codified in the Coroners and Justice Act (2009):

1. Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if-

   a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, 

   b. the loss of self-control had a qualifying trigger, and 

   c. a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. 

2. For the purpose of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
3. In subsection (1)(c), the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.

Under this Act, a “qualifying trigger” for D’s loss of self-control is one attributable to:

1. D’s fear of serious violence from V against D or “another identified person”; or
2. a thing or things done or said (or both) which-

   a. constituted circumstances of an extremely grave character, and 

   b. caused D to have a justifiable sense of being seriously wronged; or

3. a combination of the matters mentioned [above].

The only major traditional category of adequate provocation that does not involve an actual or threatened physical assault, adultery is often referred to as “the paradigm example of provocation adequate to mitigate murder to voluntary manslaughter.” Applying social science data and feminist theory regarding domestic violence, Donna K. Coker reexamines the connection between heat of passion and adultery law in her article, Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. Cal. Rev. L. & Women’s Stud. 71 (1992). For a disturbing, compelling analysis of the ways in which courts have used the modernized "extreme emotional disturbance" standard to reduce murder to manslaughter in cases involving women killed by their partners after attempting to exit the relationship, see Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331-1448 (1997).

Why Domestic Violence Victims Don't Leave (Ted Talk)

A Week Without Violence (with Alejandra Castillo and Rosie Hildago) (podcast)

609.195 MURDER IN THE THIRD DEGREE.

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

(b) Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both.

Appeal from the Office of Appellate Courts.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, 427*427 Hennepin County Attorney, Jean Burdorf, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

Thomas C. Plunkett, Saint Paul, Minnesota; Matthew D. Forsgren, Caitlinrose H. Fisher, Forsgren Fisher McCalmont DeMarea Tysver LLP, Minneapolis, Minnesota; and Peter B. Wold, Aaron Morrison, Wold & Morrison, Minneapolis, Minnesota, for appellant.

Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota, for amicus curiae Minnesota Association of Criminal Defense Lawyers.

William Ward, Minnesota State Public Defender, Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota, for amicus curiae Minnesota Board of Public Defense.

Robert Small, Minnesota County Attorneys Association Executive Director, Saint Paul, Minnesota; and Travis J. Smith, Murray County Attorney, Slayton, Minnesota, for amicus curiae Minnesota County Attorneys Association.

426*426 Syllabus by the Court

1. The mental state necessary for depraved-mind murder, Minn. Stat. § 609.195(a) (2020), is a generalized indifference to human life, which cannot exist when the defendant's conduct is directed with particularity at the person who is killed.

2. The only reasonable inference that can be drawn from the circumstances proved is that appellant's conduct was directed with particularity at the person who was killed, and the evidence is therefore insufficient to sustain his conviction under Minn. Stat. § 609.195(a), for depraved-mind murder.

OPINION

GILDEA, Chief Justice.

This case comes to us following the tragic death of Justine Ruszczyk on July 15, 2017. Ruszczyk had called police that night out of concern for a woman she heard screaming behind her home. When Ruszczyk approached the police vehicle that came in response to her call, appellant Mohamed Mohamed Noor fired his service weapon at her from the passenger seat. Noor's bullet struck Ruszczyk in the abdomen and sadly, she died at the scene.

A jury acquitted Noor of second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2020) but found him guilty of third-degree depraved-mind murder, Minn. Stat. § 609.195(a) (2020), and second-degree manslaughter, Minn. Stat. § 609.205(1) (2020). He appealed, arguing that his conviction of depraved-mind murder could not stand because his actions were directed at Ruszczyk. A divided panel of the court of appeals affirmed his conviction. State v. Noor, 955 N.W.2d 644, 664 (Minn. App. 2021).

The issue before us on appeal is not whether Noor is criminally responsible for Ruszczyk's death; he is, and his conviction of second-degree manslaughter stands. The issue before us is whether in addition to second-degree manslaughter, Noor can also be convicted of depraved-mind murder. Because conduct that is directed with particularity at the person who is killed cannot evince "a depraved mind, without regard for human life," Minn. Stat. § 609.195(a), and because the only reasonable inference that can be drawn from the circumstances proved is that Noor directed his single shot with particularity at Ruszczyk, we conclude that he cannot. Accordingly, we reverse Noor's conviction of depraved-mind murder and remand the case to the district court for Noor to be sentenced on the second-degree manslaughter conviction.

FACTS

After the fatal shooting of Ruszczyk, the State charged Noor with depraved-mind murder, Minn. Stat. § 609.195(a), and second-degree manslaughter, Minn. Stat. § 609.205(1). Later, the State amended the complaint to include second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1). At trial, the jury heard testimony from dozens of witnesses, including Noor and his partner Matthew Harrity.

From this testimony, the jury learned that Harrity and Noor responded to Ruszczyk's 911 call about a woman screaming in the alley behind Ruszczyk's home. Harrity drove, and Noor was in the 428*428 passenger seat. They drove slowly down the alley with their windows down, listening for the person in distress. When they reached the end of the alley, Harrity told Noor to enter a "Code 4," meaning that the scene was clear and that no help was needed. Harrity stopped the car at this point because he saw a bicyclist traveling nearby.

The bicyclist had not yet passed the car when Harrity had "some weird feeling to [his] left side." As Harrity began turning left, he heard something hit the car and "some sort of a murmur." He exclaimed, "[O]h, shit or oh, Jesus," and he immediately pulled his gun out of its holster. At this point, he could see that there was a "figure" outside his window, but he could not distinguish any details. Based on the unknown identity of the figure and the noise, Harrity thought "this could be a possible ambush or something."

Harrity was still turning to his left when he heard a "pop" and "saw a flash." His first instinct was to see if he had been shot because he did not know from where the shot came. Harrity did a "quick side eye" to his right and saw Noor with his gun drawn.

Noor testified that as soon as he entered the Code 4, he heard a "loud bang" on the driver's side. At the same time, someone appeared outside the driver's-side window. Harrity looked at the figure and screamed, "Oh, Jesus," and immediately reached for his gun. Noor claimed that Harrity looked at him "with fear in his eyes" and that his gun appeared caught in its holster. Noor observed a blonde woman wearing a pink shirt. Noor testified that she began raising her right arm toward Harrity, so Noor rose from his seat, put his left arm across Harrity's chest, fired one shot at the woman, and "[t]he threat was gone." When they got out of the car, Noor realized that he shot an innocent person. Still, he testified that—in the moment—he shot out of concern for Harrity's life.^[1]

In its closing argument, the State repeatedly asserted that Noor fired specifically at Ruszczyk and maintained this position when arguing about depraved-mind murder, explaining that Noor was "trying to fire at Ms. Ruszczyk" and that "[w]e know from the evidence, in fact, that the defendant's act was specifically directed at Ms. Ruszczyk. The person shot was the person that he meant to kill." But the State also contended that Noor satisfied the elements of depraved-mind murder because firing the single shot also endangered Harrity and the bicyclist. In response, defense counsel argued that depraved-mind murder does not occur when one is "focusing on a known individual." According to the defense, depraved-mind murder "is like shooting into a crowd" or "like driving a car, speeding down the road with a blindfold on."

The jury acquitted Noor of second-degree intentional murder but found him 429*429 guilty of depraved-mind murder and second-degree manslaughter. The court convicted Noor of depraved-mind murder and second-degree manslaughter but sentenced Noor only on the depraved-mind murder conviction.

Noor appealed, arguing in relevant part that the evidence was insufficient to sustain his conviction of depraved-mind murder.^[2] Noor essentially asserted that our case law creates a "particular-person exclusion," which prohibits a conviction of depraved-mind murder when the defendant's conduct is directed at the person who is killed. A divided panel of the court of appeals affirmed. Noor, 955 N.W.2d at 664. The majority contended that three cases were apposite. Id. at 652-53. It cited State v. Lowe, 66 Minn. 296, 68 N.W. 1094, 1095 (1896), for the proposition that "third-degree [depraved-mind] murder may occur even if the death-causing act endangered only one person." 955 N.W.2d at 653. Quoting State v. Mytych, 292 Minn. 248, 194 N.W.2d 276, 277 (1972), it explained that "[e]ach [depraved-mind murder] case must be determined on its own facts and issues." 955 N.W.2d at 653 (emphasis omitted). In particular, the court of appeals noted that "Mytych upheld a conviction of third-degree murder even though the victims were known to and targeted by the defendant." Id. at 655. Finally, the court reasoned that the particular-person exclusion was analogous to the "without intent to effect the death of any person" language discussed in State v. Hall, 931 N.W.2d 737, 743 (Minn. 2019) (holding that the "without intent to effect the death of any person" language in the depraved-mind murder statute did not create an element that must be affirmatively proven). Noor, 955 N.W.2d at 655-56.

Having concluded that depraved-mind murder includes death-causing actions directed with particularity at the victim, the majority considered the sufficiency of the evidence used to establish Noor's mental state. Id. at 657-59. Citing its decision in State v. Coleman, 944 N.W.2d 469, 479 (Minn. App. 2020), aff'd on other grounds, 957 N.W.2d 72 (Minn. 2021), the court concluded that the evidence was sufficient to establish that Noor "was aware that his conduct created a substantial and unjustifiable risk of death to another person and consciously disregarded that risk." 955 N.W.2d at 658.^[3] The majority therefore affirmed Noor's depraved-mind murder conviction. Id. at 664. The dissent, however, agreed with Noor that the evidence was insufficient to sustain his conviction for depraved-mind murder. Id. at 664-70 (Johnson, J., concurring in part and dissenting in part).

We granted Noor's petition for review.

ANALYSIS

Noor challenges his conviction for depraved-mind murder under section 609.195(a). Under that statute, third-degree murder occurs when a person, without the intent to kill, "causes the death of another by perpetrating an act eminently dangerous to others" that "evinc[es] a depraved mind, without regard for human life." Minn. Stat. § 609.195(a) (emphasis added). This case involves the statutory phrase requiring the State to prove that the defendant acted with "a depraved 430*430 mind, without regard for human life." This phrase describes the mental state element of depraved-mind murder. See Coleman, 957 N.W.2d at 77.^[4]

According to Noor, our precedent establishes that a depraved mind cannot be evinced when a defendant's conduct is directed with particularity toward the person who is killed. For ease of reference, we refer to Noor's argument as the "particular-person exclusion."^[5] Because the evidence establishes that his conduct was aimed specifically at the victim, Noor argues that the evidence is not sufficient to sustain his conviction of third-degree murder. The State responds that the evidence is sufficient under a line of cases that purportedly refutes the existence of the particular-person exclusion or, at the very least, conflicts with the line of cases cited by Noor. The State also argues that many of Noor's cases are distinguishable based on their procedural posture and therefore, the particular-person exclusion is not as well-established as Noor contends. And finally, if we reject the State's first two arguments, the State urges us to overrule our precedent and begin our depraved-mind murder jurisprudence anew.

I.

We turn first to the arguments regarding the statutory phrase "depraved mind, without regard for human life." The interpretation of statutes and case law is a legal question that we review de novo. State v. Friese, 959 N.W.2d 205, 209 (Minn. 2021); State v. Robideau, 796 N.W.2d 147, 150 (Minn. 2011).

A.

We have interpreted the phrase in question many times, and we have consistently held that the crime of depraved-mind murder is a general malice crime. Our "judicial construction of a statute, so long as it is unreversed, is as much a part thereof as if it had been written into it originally." State v. Schmid, 859 N.W.2d 816, 822 (Minn. 2015) (quoting Roos v. City of Mankato, 199 Minn. 284, 271 N.W. 582, 584 (1937)).^[6]

We first interpreted the phrase "depraved mind, regardless of human life" in 431*431 Bonfanti v. State, 2 Minn. 123, 128 (1858). In that case, we held that the defendant's intentional stabbing could not evince a depraved mind and that "there [was] an intention and design to effect the death of a particular individual," which meant that he could not be guilty of depraved-mind murder. Id. at 130. In other words, we said that a "depraved mind, regardless of human life" is distinct from the mental state required for intentional murder. Id.

The holding in Bonfanti implicitly recognized the distinction between the mental state of general malice, see State v. Weltz, 155 Minn. 143, 193 N.W. 42, 43 (1923) ("[A] depraved mind, regardless of human life" is "exactly descriptive of general malice."); Coleman, 957 N.W.2d at 78-79 (discussing Weltz, 193 N.W. at 42-43), and the mental state of particular malice, where the defendant's actions are directed at a specific person. See 1 Edward Hyde East, A Treatise of the Pleas of the Crown 223-32 (1806) (drawing a distinction between the two); Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry 261 (3d ed. 1809) (same); Darry v. People, 10 N.Y. 120, 156 (1854) (Denio, J.) (same). In roughly 20 cases spanning the 163 years since Bonfanti was decided, we have repeatedly reaffirmed that depraved-mind murder is a general malice crime and is therefore distinct from the particular malice crime of intentional murder.

An example comes from State v. Lowe, 66 Minn. 296, 68 N.W. 1094 (1896). There, the defendant persuaded a pregnant woman to stay in a hotel room when she went into labor. Id. at 1094. The defendant promised that he would provide a physician to care for her during childbirth. Id. The victim became sick after giving birth and was unable to get help. Id. Lowe did not seek out medical attention for the victim and did not provide competent care, as he had promised. Id. at 1094-95. The victim died several days later. Id. at 1095. We reasoned that the depraved-mind murder statute did not include acts that were committed with "special regard to their effect on any particular person." Id. We wrote that, although we did "not deem it necessary that more than one person was or might have been put in jeopardy by such act," it was, "however, necessary that the act was committed without special design upon the particular person or persons with whose murder the accused is charged." Id. (emphasis added). Applying the particular-person exclusion to the indictment, we reversed Lowe's conviction of depraved-mind murder because the facts alleged that he "had special reference" to the person who died. Id. at 1095-96.^[7]

In State v. Nelson, we discussed the particular-person exclusion before holding 432*432 that the defendant could not be guilty of depraved-mind murder. 148 Minn. 285, 181 N.W. 850, 852-53 (1921). In that case, the defendant fatally shot the victim during a confrontation with people who appeared to be trespassing on his father-in-law's farm. Id. at 851. After citing Lowe, we concluded that "[t]he evidence does not suggest" a finding of depraved-mind murder. Id. at 853. Similarly, in State v. Kopetka, the defendant was convicted of depraved-mind murder after he stabbed his wife to death. 265 Minn. 371, 121 N.W.2d 783, 784 (1963). After discussing the particular-person exclusion and our holding in Nelson, we explained that the indictment did "not accurately charge the offense" of depraved-mind murder. Id. at 786.

We have continued to rely on the particular-person exclusion in recent years. Beginning in 1970 with State v. Hanson, 286 Minn. 317, 176 N.W.2d 607 (1970), and most recently in 2017 with State v. Zumberge, 888 N.W.2d 688 (Minn. 2017), we have cited the particular-person exclusion in at least 13 cases when rejecting defendants' arguments that they were entitled to jury instructions on depraved-mind murder. For ease of reference, we will refer to these 13 cases as the "jury-instruction cases."

Hanson is representative of the jury-instruction cases. 176 N.W.2d 607. Hanson was convicted of second-degree intentional murder after shooting his wife in the back of the head from 75 feet away. Id. at 609, 612. After discussing the particular-person exclusion, we concluded that Hanson was not entitled "to an instruction that the jury could find him guilty of murder in the third degree as a lesser and included offense." Id. at 614-15.^[8]

In sum, our precedent confirms that Noor is correct in arguing that a 433*433 person does not commit depraved-mind murder when the person's actions are directed at a particular victim. The particular-person exclusion is simply another way of saying that the mental state for depraved-mind murder is one of general malice.^[9] See Coleman, 957 N.W.2d at 78-79 (citing Weltz, 193 N.W. at 42-43); Lowe, 68 N.W. at 1095; Darry, 10 N.Y. at 156 (Denio, J.). Under our precedent, general malice refers to conduct evincing indifference to human life in general and, as we recently said in Coleman, does not refer to indifference "directed at the person slain." 957 N.W.2d at 78-79.^[10]

We reaffirm our precedent today and confirm that the mental state required for depraved-mind murder cannot exist when the defendant's actions are directed with particularity at the person who is killed.

B.

Despite our precedent discussed above, the State urges us to adopt the court of appeals' conclusion that a depraved-mind murder conviction "may be based on conduct directed at a single person, and even a targeted person." Noor, 955 N.W.2d at 656. The State presents three arguments, which we address in turn.^[11]

1.

First, the State attempts to manufacture a split in our precedent by pointing to seven cases that it contends support its challenge to the particular-person exclusion. See State v. Stokely, 16 Minn. 282 (1871); State v. Brown, 41 Minn. 319, 43 N.W. 69 (1889); State v. Johnson, 279 Minn. 209, 156 N.W.2d 218 (1968); State v. Mytych, 292 Minn. 248, 194 N.W.2d 276 (1972); State v. Gilbert, 448 N.W.2d 875 (Minn. 1989); Hall, 931 N.W.2d 737; Coleman, 957 N.W.2d 72. We are not persuaded.^[12]

To begin with, Stokely was decided before Lowe. Even if it stood for the proposition 434*434 cited by the State, it would have been abrogated by our decision in Lowe. But notably, Stokely does not actually stand for the proposition cited by the State.

The defendant in Stokely made two arguments regarding depraved-mind murder. 16 Minn. at 293-95. First, he challenged the manner in which the district court gave the depraved-mind murder instructions—not their substance, as the State suggests—because he claimed that the judge suggested his guilt to the jury. Id. at 293. We disagreed with the defendant's characterization of the instructions. Id. Second, the defendant pointed to the statutory language "without any design to effect death," see Minn. Gen. Stat. ch. 94, § 2 (1866), and argued that, in addition to an "eminently dangerous" act and a "depraved mind," the State needed to affirmatively disprove an intent to kill. 16 Minn. at 293-94. We held that the State had no such obligation. Id. at 294. That was enough to resolve the issue. Stokely made no argument regarding the statutory phrase "depraved mind, regardless of human life." Id. Our subsequent discussion of that element was therefore dicta.^[13]

Moreover, in Hall we said that Stokely is consistent with the particular-person exclusion. 931 N.W.2d at 743 & n.9. In footnote 9 of our decision in Hall, we explicitly distinguished between the particular-person exclusion and the statutory phrase "without intent to effect the death of any person," found in the first sentence of the depraved-mind murder statute. Id. In reaffirming Stokely's conclusion that the State need not disprove an intent to kill, we explained that our conclusion was consistent with Hanson, 176 N.W.2d at 614-15 (relying on the particular-person exclusion), and State v. Wahlberg, 296 N.W.2d 408, 417-18 (Minn. 1980) (same), because the particular-person exclusion is part of the depraved-mind element, not part of the "without" clause. Hall, 931 N.W.2d at 743 n.9. Hall, therefore, does not support the State.^[14]

Brown similarly does not support the State's position. In Brown, we reviewed a sufficiency-of-the-evidence challenge to a conviction of first-degree murder, not depraved-mind murder. 43 N.W. at 69. In dicta, we noted that, even placing "the most favorable construction upon the defendant's evidence," it was sufficient to sustain a conviction for depraved-mind murder. Id. In placing the "most favorable construction" on the facts, we necessarily assumed that the defendant did not shoot with particularity at the person who was killed. Id. Thus, the discussion in Brown 435*435 cited by the State, while dicta, is consistent with the particular-person exclusion.

Next, the State simply misreads Coleman, 957 N.W.2d 72. In that case, we said:

[A] defendant is guilty of third-degree [depraved-mind] murder, when based on the attending circumstances: (1) he causes the death of another without intent; (2) by committing an act eminently dangerous to others, that is, an act that it [sic] is highly likely to cause death; and (3) the nature of the act supports an inference that the defendant was indifferent to the loss of life that this eminently dangerous activity could cause.

Id. at 80. The State seizes upon this description and argues that it abrogated the particular-person exclusion.

But the State plucks the above-quoted sentence out of Coleman without any reference to the language immediately preceding or following it. Just one page earlier, we repeated Weltz's statement that "a depraved mind, regardless of human life" is "exactly descriptive of general malice." Id. at 79 (quoting Weltz, 193 N.W. at 43). Coleman also acknowledged that our precedent reflects an understanding that the phrase "general malice" refers to an "indifference to human life that was not directed at the person slain." Id. at 78-79 (original emphasis omitted; new emphasis added). We therefore reject the State's attempt to expand Coleman beyond its holding.

For reasons explained above, Stokely, Brown, Johnson, Gilbert, Hall, and Coleman do not support the State's position. That leaves only Mytych, 194 N.W.2d 276. Unlike the cases discussed above, the defendant in Mytych made the same argument that Noor does in this case. After being convicted of depraved-mind murder for the shooting of her ex-fiancé and his wife, the defendant argued that her conviction must be vacated because she shot her victims with particularity. Id. at 278-79, 281. Because we rejected that argument, the State urges us to reject Noor's argument. After careful consideration, however, we conclude that there is compelling reason to overrule Mytych.

We are "extremely reluctant to overrule" our cases "and require a compelling reason" to do so. Daniel v. City of Minneapolis, 923 N.W.2d 637, 645 (Minn. 2019) (quoting Cargill, Inc. v. Ace Am. Ins. Co., 784 N.W.2d 341, 352 (Minn. 2010)). But we will not adhere to our former decisions if they "are clearly and manifestly erroneous." State v. Manford, 97 Minn. 173, 106 N.W. 907, 908 (1906).

Mytych was clearly and manifestly wrong when it was decided, and it remains clearly wrong today. The defendant in that case bought a revolver, called in sick at work, and then flew hundreds of miles under an assumed name before killing the victims. Mytych, 194 N.W.2d at 278. The intended target was the defendant's former fiancé, who secretly married another woman and later lied about the nature of his relationship with his new wife in order to engage in further sexual relations with the defendant. Id. Although this fact pattern closely resembles that of a first-degree murder case, the district court, perhaps motivated by a desire to avoid an overly harsh result for a sympathetic defendant, acquitted the defendant of the first-degree charge and convicted her of only depraved-mind murder. Id. at 281, 283.

Mytych's analysis in affirming the conviction of depraved-mind murder is poorly reasoned. The analysis is composed almost entirely of direct quotations from the district court, and the district court's reasoning, in turn, was heavily dependent on the testimony of a medical expert at trial. Id. at 281-83. The expert testified "that the word `depraved' could mean automatically 436*436 out of touch with ordinary standards of decency and reality." Id. at 283. What little analysis exists in Mytych represents a near-absolute deference to that medical expert's opinion on the legal definition of a "depraved mind." Id.

And the standard we invented in Mytych, based on the district court's reasoning and the medical expert, represented a complete departure from established precedent. We cursorily stated that Lowe, Nelson, and Kopetka were distinguishable but did not explain why that was so. Id. at 281. Upon review, we see nothing about the facts of Mytych that meaningfully distinguishes it from Nelson, 181 N.W. 850, or Kopetka, 121 N.W.2d 783. Similar to Mytych, Nelson carried a loaded gun to a confrontation and killed someone. 181 N.W. at 851. Emotions certainly ran high because he engaged in a "struggle" and was struck in the face. Id. Similarly, the defendant in Kopetka had become estranged from his wife and therefore likely harbored similar "emotions, disappointments, and hurt" as the defendant in Mytych, 194 N.W.2d at 283. See Kopetka, 121 N.W.2d at 784. We can discern no principled basis for Mytych's unexplained distinction of these two cases.

Mytych is also inconsistent with cases decided after it. Just one year after we announced our decision in Mytych, we stated that it was "not a typical application" of depraved-mind murder. State v. Leinweber, 303 Minn. 414, 228 N.W.2d 120, 123 n.3 (1975) (also identifying Lowe, Nelson, and Kopetka as typical applications of the offense). We repeated that admonition in Wahlberg, where we explicitly declined to rely on Mytych. 296 N.W.2d at 417. Additionally, all 13 of our jury-instruction cases stand in complete opposition to Mytych because they held that the particular-person exclusion operated as a matter of law to preclude a finding of depraved-mind murder. See, e.g., Zumberge, 888 N.W.2d at 698.^[15]

Although efforts to reach a just result in Mytych might have been well-intended, they led us to adopt a "clearly and manifestly erroneous" analysis. See Manford, 106 N.W. at 908. And, as illustrated by the analysis of the court of appeals here, Mytych has created confusion. The State asks us to breathe new life into this erroneous decision to affirm Noor's conviction. But "the mere fact that an error has been committed is no reason or even apology for repeating it, much less[ ] for perpetuating it." Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000) (emphases omitted) (quoting Hart v. Burnett, 15 Cal. 530, 600-01 (1860)). Given our dearth of reliance on Mytych, its unexplained departure from Lowe, Nelson, and Kopetka, and the confusion it has caused, we conclude that Mytych must be, and therefore is, overruled to the extent that it is inconsistent with this opinion.

2.

The State's second argument is that the jury-instruction cases are distinguishable, and therefore our reliance on the particular-person exclusion is not as well-established as Noor contends. The defendants in the jury-instruction cases were convicted of either first-or second-degree murder and argued on appeal that they were entitled to depraved-mind murder instructions. Relying on Lowe or its progeny, we concluded 437*437 that each of these defendants was not entitled to lesser-included offense instructions on depraved-mind murder because their actions were directed with particularity at the person who was killed. See, e.g., Zumberge, 888 N.W.2d at 698. Here, the court of appeals essentially held, and the State argues, that the jury-instruction cases are distinguishable because there was no rational basis for acquitting the defendants in these cases of the greater degrees of murder, and therefore there was no basis for a depraved-mind murder instruction. See id. at 697 (explaining that a lesser-included-offense instruction is not necessary if the evidence does not provide "a rational basis for acquitting the defendant of the offense charged" (emphasis added)).

Noor responds that the State's argument creates a distinction without a difference. Specifically, Noor argues that the jury-instruction cases are indistinguishable here because they also involved analysis of whether depraved-mind murder was rationally appropriate under their facts. See id. (explaining that an instruction is also unnecessary if the evidence does not provide "a rational basis for convicting the defendant of the lesser-included offense" (emphasis added)). We agree with Noor.

The jury-instruction cases were predominately resolved in the manner that Noor describes. For example, in Zumberge, we stated that "[t]hird-degree [depraved-mind] murder `cannot occur where the defendant's actions were focused on a specific person.'" 888 N.W.2d at 698 (quoting State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006)). In Hanson, we said "that the evidence in this case would not have justified a finding of guilty of [depraved-mind] murder in the third degree." 176 N.W.2d at 614. Similarly, we stated in State v. Phelps that the evidence did not reasonably support a conviction of depraved-mind murder. 328 N.W.2d 136, 140 (Minn. 1982). In Wahlberg, "all the blows were directed toward the victim" and therefore the defendant could not rationally have been convicted of depraved-mind murder, and "there was ample evidence to support a finding of an intentional killing, whereas third-degree murder is an unintentional killing." 296 N.W.2d at 417-18. In Stiles v. State, "no rational jury could have acquitted Stiles on intentional murder charges and convicted on third-degree murder" because his gunshots were fired only at the victim. 664 N.W.2d 315, 321-22 (Minn. 2003).

In short, reading the jury-instruction cases in the manner urged by the State and adopted by the court of appeals assigns to these cases an untenably narrow reading. Accordingly, we reject the State's argument that the jury-instruction cases are meaningfully distinguishable.

3.

Finally, the State asks us to abandon our precedent and reinterpret the depraved-mind murder statute from a clean slate. It essentially contends that there is a compelling reason to overturn our cases that rely on the particular-person exclusion. And that reason, the State argues, is that the particular-person exclusion creates a "significant hole" in Minnesota's graduated statutory homicide scheme.^[16]

438*438 If there were, in fact, a "hole" in the statute, as the State argues, it would be the job of the Legislature to fill it. But as this case itself proves, there is no hole in Minnesota's statutory regime. The parties agree that the evidence is sufficient to sustain Noor's conviction for manslaughter. His death-causing action still results in criminal liability, and therefore there is no "hole" in the statutes in the truest sense of the word. To the extent that particularized, unintentional killings must be classified as murder—as the State contends—we have already said that second-degree felony murder, Minn. Stat. § 609.19, subd. 2 (2020), fills any meaningful gap created by the particular-person exclusion. See Nelson, 181 N.W. at 853 (holding that the defendant could not be guilty of depraved-mind murder but could be guilty of felony murder); Kopetka, 121 N.W.2d at 786 (same). The State chose not to charge Noor with that offense. The additional murder charge that the State did choose to bring—second-degree intentional murder—was rejected by the jury.

In sum, the mental state necessary for depraved-mind murder, Minn. Stat. § 609.195(a), is a generalized indifference to human life and—based on our precedent—cannot exist when the defendant's conduct is directed with particularity at the person who is killed.^[17]

II.

Having explained our precedent interpreting the statutory phrase "depraved mind, without regard for human life," we now apply the law to the facts of Noor's case to determine whether the evidence is sufficient to sustain his conviction of depraved-mind murder.

When a challenge is made to the sufficiency of circumstantial evidence, we apply a two-step analysis. State v. Davenport, 947 N.W.2d 251, 266 (Minn. 2020); State v. Harris, 895 N.W.2d 592, 598 (Minn. 2017).^[18] First, we identify the circumstances proved. Harris, 895 N.W.2d at 598. When identifying the circumstances proved, we "winnow down the evidence presented at trial by resolving all questions of fact in favor of the jury's verdict, resulting in a subset of facts that constitute `the circumstances proved.'" Id. at 600. Second, we independently examine the reasonableness of all inferences that might be drawn from the circumstances proved. Id. at 598. In identifying the reasonable inferences drawn from the circumstances proved, "[w]e give no deference to the jury's choice between reasonable inferences." Id. at 601. But if the circumstances proved support conflicting reasonable inferences, one that is consistent with guilt and one that is inconsistent with guilt, the evidence is not sufficient to support the conviction. State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010).

Noor argues that the only reasonable inference that can be drawn from the circumstances proved is that his shot was directed particularly at Ruszczyk. Thus, he 439*439 contends, the particular-person exclusion precludes a finding that he acted with a "depraved mind, without regard for human life." The State responds that the circumstances proved are "inconsistent with any rational hypothesis except that of guilt."^[19]

The circumstances proved established that Ruszczyk lived in a low-crime area of Minneapolis and that she called 911 to report a woman yelling in an alley behind Ruszczyk's home. Harrity and Noor responded to that call. Noor was in the passenger seat of the squad car, as Harrity drove down the alley behind Ruszczyk's house. They made no effort to contact Ruszczyk and spent less than two minutes in the alley before alerting dispatch that the scene was clear.

Ruszczyk approached the squad car. As Harrity waited for a bicyclist to pass in front of the squad car, he turned and saw the "silhouette" of a person standing outside the driver's-side door of the squad car. Harrity was startled and said something like, "Oh, Jesus." He had his gun out of its holster but did not point, display, or fire it because he had not determined that Ruszczyk was an apparent and immediate threat.

Before Harrity had time to register what he was seeing, Noor fired his gun in front of Harrity's body and out the driver's-side window of the squad car. The shot was so close that Harrity's first instinct was to check to see if he had been shot. Noor knew that deadly force against a citizen was authorized only if it was apparent that the citizen presented a danger of death or great bodily harm to the officer or another. Noor's bullet struck Ruszczyk in her abdomen, and she died moments later from the gunshot wound.

The State concedes in its brief that one reasonable inference from these circumstances is that Noor was startled by Ruszczyk's sudden appearance outside the driver's-side window. It is also reasonable to infer that Noor fired his gun with particularity at the person who startled him. Nevertheless, the State contends that, when viewed as a whole, the circumstances proved also support a reasonable inference that Noor acted with a depraved mind, without regard for human life, because his shot endangered Harrity and the bicyclist. That argument fails. Our precedent establishes that, when the defendant's conduct is directed with particularity toward the person killed, as it was here, the mere proximity of others does not establish indifference to human life in general.^[20]

440*440 Moreover, the State fails to identify any circumstance proved that is consistent with the jury's verdict that would support a reasonable inference that Noor's conduct was indiscriminate or otherwise non-particularized. We likewise are unable to do so. Thus, when viewed as a whole, the circumstances proved do not support a reasonable inference that Noor's single bullet was shot "indiscriminately, fall it where it may." See Foster, supra, at 261. Instead, the only reasonable inference that can be drawn from the circumstances proved, as a whole, is that Noor's death-causing action was directed with particularity at Ruszczyk.

At bottom, the State emphasizes the unreasonableness of Noor's actions and contends this unreasonableness evinces a depraved mind. We may very well agree that Noor's decision to shoot a deadly weapon simply because he was startled was disproportionate and unreasonable. Noor's conduct is especially troubling given the trust that citizens should be able to place in our peace officers. But the tragic circumstances of this case do not change the fact that Noor's conduct was directed with particularity toward Ruszczyk.

Applying the particular-person exclusion to the facts of Noor's case, as we must, we hold that the State presented insufficient evidence to prove that Noor acted with a "depraved mind, without regard for human life." For that reason, we reverse Noor's conviction for depraved-mind murder, Minn. Stat. § 609.195(a). But because Noor was additionally convicted of, but not sentenced on, second-degree manslaughter, we remand to the district court to sentence him on that charge.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand to the district court to vacate Noor's conviction for depraved-mind murder and sentence him on his conviction of second-degree manslaughter.

Reversed and remanded.

[1] The State noted inconsistencies in Harrity's and Noor's testimony. For instance, earlier statements suggested that Noor and Harrity had their guns out for the entirety of the alley drive. Moreover, they did not immediately report to other officers that they had heard a noise before the shot was fired. Forensic scientists testified that, despite dusting the entire car for fingerprints, Ruszczyk's prints were not found. During closing argument, the State pointed out that the noise—the "slap, the bang, the murmur, the thump, the bang, the pow, however it's been described"—was never described the same way by any two witnesses. The State argued that there was, in fact, no noise and that it had been invented after the fact. Consistent with our standard of review, which requires that we reject evidence that is not consistent with the jury's verdict, see State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017), we assume that there was no noise.

[2] On appeal, Noor concedes that the evidence is sufficient to support his conviction of second-degree manslaughter.

[3] While we ultimately affirmed the court of appeals in Coleman, we explicitly rejected its formulation of the necessary mental state as a conscious disregard of "a substantial and unjustifiable risk of causing the death of another." 957 N.W.2d at 76, 80-81. Noor correctly points out that the court of appeals applied to his case the standard that we rejected in Coleman.

[4] This phrase has been present in Minnesota's homicide statutes since even before statehood, albeit in a slightly different form: "a depraved mind, regardless of human life." Minn. Rev. Stat. (Terr.) ch. 100, § 2 (1851) (emphasis added).

[5] Noor presents two alternative arguments. He contends that affirming his conviction would be an ex post facto judicial decision and would therefore violate his due process rights. See Bouie v. City of Columbia, 378 U.S. 347, 350, 353, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Additionally, Noor argues that, regardless of the particular-person exclusion in our precedent, he simply did not act with a depraved mind because his conduct reflected a split-second decision to protect his partner's life. Because we agree with Noor's primary argument, we do not reach his alternative arguments.

[6] We acknowledge that commentators have suggested that the meaning of the phrase "depraved mind" is unclear. See 9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice—Criminal Law and Procedure § 49:8 (4th ed. 2012) ("The notion of a `depraved mind' is an old one, and its meaning is neither obvious nor well-defined." (footnote omitted)). The Jury Instructions Guide also notes that "[t]he phrase `depraved mind' has not been included in the elements" because it "is not susceptible of definition, except in terms of an `eminently dangerous' act and the lack of regard for human life." 10 Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 11.38 n.2 (6th ed. 2020). We have previously recognized the need to remove archaic language from the law. See Minn. Sup. Ct. Advisory Comm. on Rules of Crim. Proc., No. CX-84-2137, Report and Proposed Amendments to the Minnesota Rules of Criminal Procedure for a Complete Stylistic Revision of the Rules 1 (filed Apr. 22, 2009) (explaining that one of the key objectives of the project was to eliminate archaic language). The Legislature has also recognized this need, with other statutory provisions. See Act of Apr. 18, 2000, ch. 418, art. 1, § 1, 2000 Minn. Laws 796, 796 (recodifying chapter 297A to remove archaic language). Yet for the past century and a half, the Legislature has left the phrase "depraved mind" untouched. Whether Minn. Stat. § 609.195(a) should be updated to provide greater guidance to prosecutors and juries, however, is not a decision for the judiciary. Our task is only to interpret the words as written. See In re Est. of Karger, 253 Minn. 542, 93 N.W.2d 137, 142 (1958) ("What the law ought to be is for the legislature; what the law is, rests with the courts.").

[7] In support, we relied on a New York case, Darry, which held that a depraved mind is evinced only by acts that: (1) put "the lives of many" in danger, and (2) are not "aimed at any one in particular." 10 N.Y. at 146, 148 (Selden, J.). We will refer to these aspects of Darry as the "more-than-one-person requirement" and the "particular-person exclusion." The court in Darry interpreted the phrase "depraved mind, regardless of human life" as excluding "all cases of particular" malice and including only "cases of general" malice. Id. at 145. The court explained:

The act must evince a depraved mind, regardless of human life. These words are exactly descriptive of general malice and cannot be fairly applied to any affection of the mind having for its object a particular individual. They define general recklessness and are not pertinent to describe cruelty to an individual. The act by which the death is effected must evince a disregard to human life. Now, a brutal assault upon an individual may evince animosity and hate towards that person, and a cruel and revengeful disposition, but it could not properly be said to be evidence of a recklessness and disregard of human life generally.

Id. at 156 (Denio, J.) (original emphasis omitted; new emphases added). We agreed with Darry in Lowe and explicitly adopted its particular-person exclusion. 68 N.W. at 1095. We did not, however, adopt Darry's more-than-one-person requirement. Id.

In affirming Noor's conviction, the court of appeals erroneously focused only on our rejection of the more-than-one-person requirement and ignored our adoption of the particular-person exclusion. See Noor, 955 N.W.2d at 652-55. The State makes the same mistake in its briefing to our court.

[8] The other 12 jury-instruction cases are similar. See State v. Reilly, 269 N.W.2d 343, 349 (Minn. 1978) (citing the particular-person exclusion to reject an argument for instructions on depraved-mind murder); State v. Stewart, 276 N.W.2d 51, 54 (Minn. 1979) (same); State v. Wahlberg, 296 N.W.2d 408, 417-18 (Minn. 1980) (same); State v. Phelps, 328 N.W.2d 136, 140 (Minn. 1982) (same); State v. Carlson, 328 N.W.2d 690, 694 (Minn. 1982) (same); State v. Fox, 340 N.W.2d 332, 335 (Minn. 1983) (same); State v. Fratzke, 354 N.W.2d 402, 410 (Minn. 1984) (same); State v. Jackman, 396 N.W.2d 24, 30 (Minn. 1986) (same), abrogated on other grounds, State v. Palmer, 803 N.W.2d 727, 734 (Minn. 2011); State v. Lee, 491 N.W.2d 895, 901 (Minn. 1992) (same); Stiles v. State, 664 N.W.2d 315, 321-22 (Minn. 2003) (same); State v. Harris, 713 N.W.2d 844, 850 (Minn. 2006) (same); Zumberge, 888 N.W.2d at 698 (same).

In Zumberge, 888 N.W.2d at 698, we relied on the recitation of the particular-person exclusion from State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006). In Barnes, we held that first-degree domestic-abuse murder does not unconstitutionally overlap with depraved-mind murder, in part because the former only occurs when the defendant's indifference is "directed at the specific person" and the latter cannot occur in that case. 713 N.W.2d at 331 (citing Wahlberg, 296 N.W.2d at 417).

[9] Minnesota law recognizes that, absent a valid defense, when a person's malice is directed at a particular individual, the person commits a more serious offense, which, depending on the circumstances, may include second-degree intentional murder or first-degree premeditated murder. See State v. Duke, 335 N.W.2d 511, 513 (Minn. 1983) (affirming conviction of second-degree intentional murder when the defendant "pointed the gun at [the victim's] head and fired from close range"); State v. Goodloe, 718 N.W.2d 413, 423 (Minn. 2006) (affirming conviction of first-degree premeditated murder when the defendant "took a loaded gun from under the seat of his vehicle, ... chambered a round in the gun, pursued [the victim] to the back office, forced open the office door, and fired seven shots, three of which struck [the victim] in the head").

[10] For instance, the mental state required for depraved-mind murder has been shown by defendants driving vehicles at high speeds through crowds, intersections, or on populated frozen lakes. See Weltz, 193 N.W. at 44; Hall, 931 N.W.2d at 738; Coleman, 957 N.W.2d at 74. Other examples could include defendants who: obstruct train tracks and thereby cause an accident, Bonfanti, 2 Minn. at 129, go on a "sudden random shooting spree," Carlson, 328 N.W.2d at 694, or ride "an unruly horse ... among a crowd of persons," East, supra, at 231.

[11] In addition to these arguments, the State contends that the particular-person exclusion cannot be a part of the depraved-mind murder statute because it is not expressly found in its text. The State's argument ignores the principle of statutory interpretation that our interpretation becomes a part of the statute as though it were written in the statute. See Schmid, 859 N.W.2d at 822; Roos, 271 N.W. at 584.

[12] Johnson and Gilbert are so clearly distinguishable that we address them only briefly. Johnson dealt with the constitutionality of a plea agreement for depraved-mind murder. 156 N.W.2d at 220-24. Similarly, Gilbert was a sentencing case in which we reduced a defendant's sentence "as if [he] had been convicted of the lesser offense of attempted third-degree depraved mind murder" instead of second-degree intentional murder. 448 N.W.2d at 876. Neither of these cases required us to determine whether the State established a "depraved mind, without regard for human life."

[13] The State suggests that the mere mention of Stokely by a 1955 legislative advisory committee changed the meaning of depraved-mind murder. The State's argument is unpersuasive because both the pre- and post-1955 depraved-mind murder statutes retained the same language to describe the requisite mental state: "a depraved mind, regardless of human life." Compare Minn. Stat. § 619.10 (1953), with Minn. Stat. § 619.10 (1957).

[14] The State rests its argument almost entirely on Stokely and Hall. But although those cases correctly held that the State does not need to disprove an intent to kill, our precedent is clear that the State must prove general malice, a mental state that is incompatible with particular malice. See Lowe, 68 N.W. at 1095; Weltz, 193 N.W. at 43; see also Bonfanti, 2 Minn. at 128. The State's reliance on Stokely and Hall, cases that interpreted only the "without intent" clause and not the "depraved mind" clause, is therefore misplaced.

[15] Although not cited by the State for this proposition, we note that Hall cited to Mytych to support its conclusion that the State need not disprove an intent to kill. See Hall, 931 N.W.2d at 740-41. But Hall did not rely on Mytych to reject the particular-person exclusion; rather, Mytych was used only as inferential support for Hall's interpretation of the "without intent" clause. See id.

[16] At oral argument, the State additionally claimed that if we do not overturn our precedent, no police officer could ever be convicted of depraved-mind murder. The State is wrong. Absent a legal defense, any person, including a police officer, who kills someone while evincing indifference to human life in general could be convicted of depraved-mind murder. See supra note 7. Moreover, depending on the facts of any given case, a fatal police shooting could result in first-degree premeditated murder, second-degree intentional murder, or second-degree felony murder. Minn. Stat. §§ 609.185-.19 (2020).

[17] The State asks us to apply cases from other states, namely Wisconsin. But cases from other states are difficult to evaluate because of substantial differences in state statutory homicide regimes. Many states do not even recognize depraved-mind murder. See 2 Wayne R. LaFave, Substantive Criminal Law § 14.4(a) n.18 (3d ed. 2018) (collecting 12 state statutes). We therefore decline the State's invitation to rely on precedent from other jurisdictions.

[18] The court of appeals assumed without deciding that the circumstantial-evidence standard applied. 955 N.W.2d at 657. Neither party challenges this part of the court's decision. We therefore apply this standard as well.

[19] The State also contends that we must assume the jury followed the trial court's instructions. See State v. Vang, 774 N.W.2d 566, 578 (Minn. 2009). The court instructed the jurors that to find Noor guilty of depraved-mind murder, Noor's actions "may not be specifically intended to cause death and may not be specifically directed at the particular person whose death occurred." (Emphases added.) See Minn. Dist. Judges Ass'n, supra, CRIMJIG 11:38. According to the State, the jury's guilty verdict on the charge of depraved-mind murder necessarily reflects an inference that Noor's actions were not directed with particularity at Ruszczyk. As we explain, such an inference is not reasonable on this record. But even if it were, it would not mean that the State prevails, because there is also a reasonable inference that Noor's actions were directed with particularity at the victim. See Andersen, 784 N.W.2d at 329-30.

[20] In Hanson, the victim was eight feet away from another person when she was shot. 176 N.W.2d at 612. In Carlson, there were five bystanders when the defendant shot his son and wife. 328 N.W.2d at 694. In Jackman, bar patrons were so close to the victim that they were "spattered with blood" when the defendant shot him. 396 N.W.2d at 30. In Stiles, the defendant shot the victim in the presence of four other people. 664 N.W.2d at 317. In Harris, the defendant shot two people in a crowded apartment room (containing a total of seven people), fatally wounding one of them. 713 N.W.2d at 847. And in Zumberge, the defendant used a shotgun to kill the victim and wound the victim's girlfriend, who was standing immediately nearby. 888 N.W.2d at 693. Despite endangering multiple people, we held that none of these defendants could rationally be guilty of depraved-mind murder because their conduct was directed with particularity toward their victims.

[No. S134543. May 31, 2007.]

THE PEOPLE, Plaintiff and Appellant, v. MARJORIE KNOLLER, Defendant and Appellant.

Counsel

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.

Dennis Patrick Riordan, under appointment by the Supreme Court, Riordan & Morgan, Donald M. Morgan and Dylan Schaffer for Defendant and Appellant.

Opinion

KENNARD, J.

On January 26, 2001, two dogs owned by defendant Marjorie Knoller and her husband, codefendant Robert Noel, attacked and killed Diane Whipple in the hallway of an apartment building in San Francisco. Defendant Knoller was charged with second degree murder (Pen. Code, § 189)1 and involuntary manslaughter (§ 192, subd. (b)); codefendant Noel, who was not present at the time of the attack on Whipple, was charged with involuntary manslaughter but not murder. Both were also charged with owning a mischievous animal that caused the death of a human being, in violation of section 399.

After a change of venue to Los Angeles County, a jury convicted defendants on all counts. Both moved for a new trial. (See § 1181, subd. 6 [a trial court may grant a new trial when “the verdict or finding is contrary to law or evidence”].) The trial court denied Noel’s motion. It granted Knoller’s motion in part, giving her a new trial on the second degree murder charge, but denying her motion for a new trial on the other two crimes of which she was convicted (involuntary manslaughter and possession of a mischievous animal that causes death).

With respect to Knoller, whose conviction of second degree murder was based on a theory of implied malice, the trial court took the position that, to be guilty of that crime, Knoller must have known that her conduct involved a high probability of resulting in the death of another. Finding such awareness lacking, the trial court granted Knoller’s motion for a new trial on the second degree murder conviction.

The trial court sentenced both defendants to four years’ imprisonment, the maximum term for involuntary manslaughter (§ 193, subd. (b)), staying the sentences for the section 399 violations. Defendants appealed from their convictions, and the People appealed from the order granting Knoller a new trial on the murder count. The Court of Appeal consolidated the appeals.

The Court of Appeal reversed the trial court’s order granting Knoller a new trial on the second degree murder charge. It remanded the case to the trial court for reconsideration of the new trial motion in light of the Court of Appeal’s holding that implied malice can be based simply on a defendant’s conscious disregard of the risk of serious bodily injury to another. In all other respects, the Court of Appeal affirmed the convictions of both defendants.

Both defendants petitioned this court for review. We granted only Knoller’s petition, limiting review to two questions: “(1) Whether the mental state required for implied malice includes only conscious disregard for human life or can it be satisfied by an awareness that the act is likely to result in great bodily injury,”2 and “(2) Whether the trial court abused its discretion in granting Knoller’s motion for new trial under Penal Code section 1181 [, subdivision 6].”

With respect to the first issue, we reaffirm the test of implied malice we set out in People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353] and, as mentioned on page 152, post, reiterated in many later cases: Malice is implied when the killing is proximately caused by “ ‘an 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.’ ” (People v. Phillips, supra, at p. 587.) In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.

Measured against that test, it becomes apparent that the Court of Appeal set the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury. But the trial court set the bar too high, ruling that implied malice requires a defendant’s awareness that his or her conduct had a high probability of resulting in death, and that granting defendant Knoller a new trial was justified because the prosecution did not charge codefendant Noel with murder. Because the trial court used an incorrect test of implied malice, and based its decision in part on an impermissible consideration, we conclude that it abused its discretion in granting Knoller a new trial on the second degree murder count. It is uncertain whether the court would have granted the new trial had it used correct legal standards. We therefore remand the matter to the Court of Appeal, and direct it to return the case to the trial court with directions to reconsider defendant Knoller’s new trial motion in light of the views set out in this opinion.

I. Facts and Proceedings

In 1998, Pelican Bay State Prison inmates Paul Schneider and Dale Bretches, both members of the Aryan Brotherhood prison gang, sought to engage in a business of buying, raising, and breeding Presa Canario dogs. This breed of dog tends to be very large, weighing over 100 pounds, and reaching over five feet tall when standing on its hind legs. A document found in defendants’ apartment describes the Presa Canario as “a gripping dog . . . [f] . . . always used and bred for combat and guard . . . [and] used extensively for fighting . . . .”

Prisoners Schneider and Bretches relied on outside contacts, including Brenda Storey and Janet Coumbs, to carry out their Presa Canario business. Schneider told Coumbs that she should raise the dogs.

As of May 1990, Coumbs possessed four such dogs, named Bane, Isis, Hera, and Fury. Hera and Fury broke out of their fenced yard and attacked Coumbs’s sheep. Hera killed at least one of the sheep and also a cat belonging to Coumbs’s daughter. Coumbs acknowledged that Bane ate his doghouse and may have joined Fury in killing a sheep.

Defendants Knoller and Noel, who were attorneys representing a prison guard at Pelican Bay State Prison, met inmate Schneider at the prison sometime in 1999. In October 1999, defendants filed a lawsuit on behalf of Brenda Storey against Coumbs over the ownership and custody of the four dogs. Coumbs decided not to contest the lawsuit and to turn the dogs over to defendants. Coumbs warned Knoller that the dogs had killed Coumbs’s sheep, but Knoller did not seem to care.

Defendant Knoller thereafter contacted Dr. Donald Martin, a veterinarian for 49 years, and on March 26, 2000, he examined and vaccinated the dogs. With his bill to Knoller, Dr. Martin included a letter, which said in part: “I would be professionally amiss [sic] if I did not mention the following, so that you can be prepared. These dogs are huge, approximately weighing in the neighborhood of 100 pounds each. They have had no training or discipline of any sort. They were a problem to even get to, let alone to vaccinate. You mentioned having a professional hauler gather them up and taking them. . . . Usually this would be done in crates, but I doubt one could get them into anything short of a livestock trailer, and if let loose they would have a battle, [f] To add to this, these animals would be a liability in any household, reminding me of the recent attack in Tehama County to a boy by large dogs. He lost his aim and disfigured his face. The historic romance of the warrior dog, the personal guard dog, the gaming dog, etc. may sound good but hardly fits into life today.” Knoller thanked Dr. Martin for the information and said she would pass it on to her client.

On April 1, 2000, both defendants and a professional dog handler took custody of the dogs from Coumbs. Bane then weighed 150 pounds and Hera 130 pounds. Coumbs told both defendants that she was worried about the dogs, that Hera and Fury should be shot, and that she was also concerned about Bane and Isis.

Hera remained for a short time at a kennel in San Mateo County while Bane was sent to a facility in Los Angeles County. Both defendants soon became concerned for the health of the two dogs. On April 30, 2000, defendants brought Hera to their sixth-floor apartment at 2398 Pacific Avenue in San Francisco. Bane arrived in September 2000. Codefendant Noel purchased dog licenses, registering himself and Knoller as the dogs’ owners.

A later search of defendants’ apartment showed that they frequently exchanged letters with Pelican Bay inmates Schneider and Bretches. Over 100 letters were sent and received between March and December 2000, apparently under the guise of attorney-client correspondence.3 In the letters, defendants discussed a commercial breeding operation, considering various names such as GuerraHund Kennels, Wardog, and finally settling on Dog-O-War. Prisoners Schneider and Bretches’s notes on a Web site for the business described Bane as “Wardog,” and “Bringer of Death: Ruin: Destruction.”

Between the time defendants Noel and Knoller brought the dogs to their sixth-floor apartment in San Francisco and the date of the fatal mauling of Diane Whipple on January 26, 2001, there were about 30 incidents of the two dogs being out of control or threatening humans and other dogs. Neighbors mentioned seeing the two dogs unattended on the sixth floor and running down the hall. Codefendant Noel’s letters to prisoner Schneider confirmed this, mentioning one incident when defendant Knoller had to let go of the two dogs as they broke from her grasp and ran to the end of the hall. Noel described how the dogs even pushed past him and “took off side by side down the hall toward the elevator in a celebratory stampede!! 240 lbs. of Presa wall to wall moving at top speed!!!” In a letter to inmate Schneider, defendant Knoller admitted not having the upper body strength to handle Bane and having trouble controlling Hera.

When neighbors complained to defendants Noel and Knoller about the two dogs, defendants responded callously, if at all. In one incident, neighbors Stephen and Aimee West were walking their dog in a nearby park when Hera attacked their dog and “latched on” to the dog’s snout. Noel was unable to separate the dogs, but Aimee threw her keys at Hera, startling Hera and causing Hera to release her grip on the Wests’ dog. On another day, Stephen West was walking his dog when he encountered Noel with Bane. Bane lunged toward West’s dog, but Noel managed to pull Bane back. When Stephen West next saw Noel, West suggested that Noel muzzle the dogs and talk to dog trainer Mario Montepeque about training them; Noel replied there was no need to do so. Defendants Knoller and Noel later encountered Montepeque, who advised defendants to have their dogs trained and to use a choke collar. Defendants disregarded this advice. On still another occasion, when dog walker Lynn Gaines was walking a dog, Gaines told Noel that he should put a muzzle on Bane; Noel called her a “bitch” and said the dog Gaines was walking was the problem.

There were also instances when defendants’ two dogs attacked or threatened people. David Moser, a fellow resident in the apartment building, slipped by defendants Knoller and Noel in the hallway only to have their dog Hera bite him on the “rear end.” When he exclaimed, “Your dog just bit me,” Noel replied, “Um, interesting.” Neither defendant apologized to Moser or reprimanded the dog. Another resident, Jill Cowen Davis, was eight months pregnant when one of the dogs, in the presence of both Knoller and Noel, suddenly growled and lunged toward her stomach with its mouth open and teeth bared. Noel jerked the dog by the leash, but he did not apologize to Davis. Postal carrier John Watanabe testified that both dogs, unleashed, had charged him. He said the dogs were in a “snarling frenzy” and he was “terrified for [his] life.” When he stepped behind his mail cart, the dogs went back to Knoller and Noel. On still another occasion, the two dogs lunged at a six-year-old boy walking to school; they were stopped less than a foot from him.

One time, codefendant Noel himself suffered a severe injury to his finger when Bane bit him during a fight with another dog. The wound required surgery, and Noel had to wear a splint on his arm and have two steel pins placed in his hand for eight to 10 weeks.

Mauling victim Diane Whipple and her partner Sharon Smith lived in a sixth-floor apartment across a lobby from defendants. Smith encountered defendants’ two dogs as often as once a week. In early December 2000, Whipple called Smith at work to say, with some panic in her voice, that one of the dogs had bitten her. Whipple had come upon codefendant Noel in the lobby with one of the dogs, which lunged at her and bit her in the hand. Whipple did not seek medical treatment for three deep, red indentations on one hand. Whipple made every effort to avoid defendants’ dogs, checking the hallway before she went out and becoming anxious while waiting for the elevator for fear the dogs would be inside. She and Smith did not complain to apartment management because they wanted nothing to do with defendants Knoller and Noel.

On January 26, 2001, Whipple telephoned Smith to say she was going home early. At 4:00 p.m., Esther Birkmaier, a neighbor who lived across the hall from Whipple, heard dogs barking and a woman’s “panic-stricken” voice calling, “Help me, help me.” Looking through the peephole in her front door, Birkmaier saw Whipple lying facedown on the floor just over the threshold of her apartment with what appeared to be a dog on top of her. Birkmaier saw no one else in the hallway. Afraid to open the door, Birkmaier called 911, the emergency telephone number, and at the same time heard a voice yelling, “No, no, no” and “Get off.” When Birkmaier again approached her door, she could hear barking and growling directly outside and a banging against a door. She heard a voice yell, “Get off, get off, no, no, stop, stop.” She chained her door and again looked through the peephole. Whipple’s body was gone and groceries were strewn about the hallway. Birkmaier called 911 a second time.

At 4:12 p.m., San Francisco Police Officers Sidney Laws and Leslie Forrestal arrived in response to Birkmaier’s telephone calls. They saw Whipple’s body in the hallway; her clothing had been completely ripped off, her entire body was covered with wounds, and she was bleeding profusely. Defendant Knoller and the two dogs were not in sight.

The officers called for an ambulance. Shortly thereafter, defendant Knoller emerged from her apartment. She did not ask about Whipple’s condition but merely told the officers she was looking for her keys, which she found just inside the door to Whipple’s apartment.

An emergency medical technician administered first aid to Whipple, who had a large, profusely bleeding wound to her neck. The wound was too large to halt the bleeding, and Whipple’s pulse and breathing stopped as paramedics arrived. She was revived but died shortly after reaching the hospital.

An autopsy revealed over 77 discrete injuries covering Whipple’s body “from head to toe.” The most significant were lacerations damaging her jugular vein and her carotid artery and crushing her larynx, injuries typically inflicted by predatory animals to kill their prey. The medical examiner stated that although earlier medical attention would have increased Whipple’s chances of survival, she might ultimately have died anyway because she had lost one-third or more of her blood at the scene. Plaster molds of the two dogs’ teeth showed that the bite injuries to Whipple’s neck were consistent with Bane’s teeth.

Animal control officer Andrea Runge asked defendant Knoller to sign over custody of the dogs for euthanasia. Knoller, whom Runge described as “oddly calm,” agreed to sign over Bane, but she refused to sign over Hera for euthanasia and she refused to help the animal control officers with the animals, saying she was “unable to handle the dogs.” When tranquilizer darts malfunctioned and failed to quiet Bane, “come-along” poles were used by animal control officers backed up by officers with guns drawn. Hera too was controlled by officers with “come-along” poles.

On February 8, 2001, both defendants appeared on the television show Good Morning America and basically blamed mauling victim Whipple for her own death. Defendant Knoller claimed that Whipple had already opened her apartment door when something about her interested Bane. He broke away, pulled Knoller across the lobby, and jumped up on Whipple, putting his paws on either side of her. Knoller said she pushed Whipple into Whipple’s apartment, fell on top of Whipple, and then tried to shield Whipple with her own body. But Whipple’s struggles must have been misinterpreted by the dog, and when Whipple struck Knoller with her fist, the dog began to bite Whipple. Knoller claimed that Whipple had ample opportunity to just slam the door of her apartment or stay still on the floor.

Codefendant Noel did not testify, but he presented evidence of positive encounters between the two dogs and veterinarians, friends, and neighbors. Defendant Knoller did testify in her own defense. She referred to herself, her husband, and Pelican Bay prisoner Schneider as the “triad,” and she spoke of Schneider as her “son.” The two dogs had become a focal point in the relationship. She denied reading literature in the apartment referring to the vicious nature of the dogs. She thought the dogs had no personality problems requiring a professional trainer. She denied receiving or otherwise discounted any warnings about the two dogs’ behavior and she maintained that virtually all the witnesses testifying to incidents with the dogs were lying. She said she never walked both dogs together. Ordinarily, she would walk Hera and codefendant Noel would walk Bane, because she had insufficient body strength to control Bane. But after Noel was injured while breaking up a fight between Bane and another dog, Knoller would sometimes walk Bane, always on a leash. She said she had just returned from walking Bane on the roof of the apartment building, and had opened the door to her apartment while holding Bane’s leash, when Bane dragged her back across the lobby toward Whipple, who had just opened the door to her own apartment. The other dog, Hera, left defendants’ apartment and joined Bane, who attacked Whipple. Knoller said she threw herself on Whipple to save her. She denied that Hera participated in the attack. She acknowledged not calling 911 to get help for Whipple.

Asked whether she denied responsibility for the attack on Whipple, Knoller gave this reply: “I said in an interview that I wasn’t responsible but it wasn’t for the—it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”

In rebuttal, the prosecution presented evidence that the minor character of defendant Knoller’s injuries—principally bruising to the hands—indicated that she had not been as involved in trying to protect mauling victim Whipple as she had claimed. Dr. Randall Lockwood, the prosecution’s expert on dog behavior, testified that good behavior by a dog on some occasions does not preclude aggressive and violent behavior on other occasions, and he mentioned the importance of training dogs such as Bane and Hera not to fight.

The jury found Knoller guilty of second degree murder; it also found both Knoller and Noel guilty of involuntary manslaughter and owning a mischievous animal that caused the death of a human being. Both defendants moved for a new trial. The trial court denied Noel’s motion. We quote below the pertinent statements by the trial court in granting Knoller’s motion for a new trial on the second degree murder count.

The trial court observed: “The law requires that there be a subjective understanding on the part of the person that on the day in question—and I do not read that as being January 26th, 2001 because by this time, with all of the information that had come out dealing with the dogs, the defendants were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad. [f] Is the ‘something bad’ death? That is the ultimate question in the case. There is no question but that the something bad was going to be that somebody was going to be badly hurt. I defy either defendant to stand up and tell me they had no idea that those dogs were going to hurt somebody one day. But can they stand up and say that they knew subjectively—not objectively and that’s an important distinction—that these dogs were going to stand up and kill somebody?” (Italics added.)

The trial court continued: “I am guided by a variety of principles. One of them is that public emotion, public outcry, feeling, passion, sympathy do not play a role in the application of the law. The other is that I am required to review all of the evidence and determine independently rather than as a jury what the evidence showed. I have laid out most of the evidence as it harms the defendants in this case. Their conduct from the time that they got the dogs to the time—to the weeks after Diane Whipple’s death was despicable. . . .

“There was one time on the stand, Ms. Knoller, when I truly believed what you said. You broke down in the middle of a totally scripted answer and you actually, instead of crying, you actually got mad and you said you had no idea that this dog could do what he did and pounded the table. I believed you. That was the only time, but I did believe you.” The court then described the definition of second degree murder as requiring that one “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being.” (Italics added.)

The trial court went on: “What we have in this case as it relates to Ms. Knoller is the decision to take the dog outside, into the hallway, up to the roof, go to the bathroom, bring it back down and put it in the apartment. There was no question but that taking the dog out into the hallway by that very act exposed other people in the apartment, whether they are residents there or guests, invitees to what might happen with the dog. When you take everything as a totality, the question is whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability that day, or on the day before on the day after,—I reject totally the argument of the defendants that she had to know when she walked out the door—she was going to kill somebody that morning. The Court finds that the evidence does not support it.” (Italics added.)

The trial court concluded it had “no choice, . . . taking the Legislature’s scheme, the evidence that was received, as despicable as it is, but to determine not that [defendant Knoller] is acquitted of second degree murder but to find that on the state of the evidence, I cannot say as a matter of law that she subjectively knew on January 26th that her conduct was such that a human being was likely to die.” (Italics added.)

The trial court mentioned another consideration: “The Court also notes a great troubling feature of this case that Mr. Noel was never charged [with murder] as Ms. Knoller was. In the Court’s view, given the evidence, Mr. Noel is more culpable than she. Mr. Noel personally knew that she could not control those dogs. He could not control those dogs. Mr. Noel was substantially haughtier than she was. In brushing off all of the incidents that happened out in the street, Mr. Noel knew as a theological certainty that that dog, which had recently been operated on, was taking medication that had given it diarrhea, was going to go out into the hallway or out into the street possibly, at the hands of Ms. Knoller. He . . . left her there to do that. . . . And yet Mr. Noel was not charged [with murder]. Equality of sentencing and the equal administration of justice is an important feature in any criminal court. That played a role as well.” The trial court then granted defendant Knoller’s motion for a new trial on the second degree murder count.

As noted earlier, both defendants as well as the prosecution appealed. The Court of Appeal reversed the trial court’s order granting Knoller’s motion for a new trial on the second degree murder count. It disagreed with the trial court that a second degree murder conviction, based on a theory of implied malice, required that Knoller recognized “her conduct was such that a human being was likely to die.” The Court of Appeal held that a second degree murder conviction can be based simply on a defendant’s “subjective appreciation and conscious disregard of a likely risk of . . . serious bodily injury.” In all other respects, the Court of Appeal affirmed both defendants’ convictions.

II. The Elements of Implied Malice

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) At issue here is the definition of “implied malice.”

Defendant Knoller was convicted of second degree murder as a result of the killing of Diane Whipple by defendant’s dog, Bane. Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. (See §§ 187, subd. (a), 189.) Section 188 provides: “[Malice may be either express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

The statutory definition of implied malice, a killing by one with an “abandoned and malignant heart” (§ 188), is far from clear in its meaning. Indeed, an instruction in the statutory language could be misleading, for it “could lead the jury to equate the malignant heart with an evil disposition or a despicable character” (People v. Phillips, supra, 64 Cal.2d at p. 587) instead of focusing on a defendant’s awareness of the risk created by his or her behavior. “Two lines of decisions developed, reflecting judicial attempts ‘to translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 [13 Cal.Rptr.2d 864, 840 P.2d 969], quoting People v. Protopappas (1988) 201 Cal.App.3d 152, 162-163 [246 Cal.Rptr. 915].) Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of death to another.

The earlier of these two lines of decisions, as this court observed in People v. Nieto Benitez, supra, 4 Cal.4th at pages 103-104, originated in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], which stated that malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (We here refer to this as the Thomas test.) The later line dates from this court’s 1966 decision in People v. Phillips, supra, 64 Cal.2d at page 587: Malice is implied when the killing is proximately caused by “ ‘an 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.’ ” (The Phillips test.)

In People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279], we held that these two definitions of implied malice in essence articulated the same standard. Concerned, however, that juries might have difficulty understanding the Thomas test’s concept of “wanton disregard for human life,” we later emphasized that the “better practice in the future is to charge juries solely in the straightforward language of the ‘conscious disregard for human life’ definition of implied malice,” the definition articulated in the Phillips test. (People v. Dellinger (1989) 49 Cal.3d 1212, 1221 [264 Cal.Rptr. 841, 783 P.2d 200].) The standard jury instructions thereafter did so. (See CALJIC No. 8.11; Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 520.) Since 1989, our decisions have articulated the standard we set out in Dellinger and in CALJIC No. 8.11. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 994 [28 Cal.Rptr.3d 725, 111 P.3d 987]; People v. Taylor (2004) 32 Cal.4th 863, 867-868 [11 Cal.Rptr.3d 510, 86 P.3d 881]; People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666]; People v. Hansen (1994) 9 Cal.4th 300, 308 [36 Cal.Rptr.2d 609, 885 P.2d 1022]; People v. Whitfield (1994) 7 Cal.4th 437, 450 [27 Cal.Rptr.2d 858, 868 P.2d 272]; People v. Nieto Benitez, supra, 4 Cal.4th at pp. 104, 111.) The trial court here instructed the jury in the language of CALJIC No. 8.11.

III. The Court of Appeal’s Test for Implied Malice

As discussed in the preceding part, the great majority of this court’s decisions establish that a killer acts with implied malice only when acting with an awareness of endangering human life. This principle has been well settled for many years, and it is embodied in the standard jury instruction given in murder cases, including this one. The Court of Appeal here, however, held that a second degree murder conviction, based on a theory of implied malice, can be based simply on a defendant’s awareness of the risk of causing serious bodily injury to another.

In support of that view, the Court of Appeal pointed to three decisions of this court: People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911] (Conley), People v. Poddar (1974) 10 Cal.3d 750 [111 Cal.Rptr. 910, 518 P.2d 342] (Poddar), and People v. Coddington (2000) 23 Cal.4th 529 [97 Cal.Rptr.2d 528, 2 P.3d 1081] (Coddington). We discuss each case below.

In Conley, supra, 64 Cal.2d 310, the defendant, after consuming copious quantities of alcohol, went to the home of his former lover and her husband, where he shot and killed both of them. He was convicted of two counts of first degree murder. The issue on appeal was whether the trial court should have instructed the jury on diminished mental capacity caused by intoxication. This court held that it should have so instructed because “[a]n awareness of the obligation to act within the general body of laws regulating society . . . is included in the statutory definition of implied malice in terms of the abandoned and malignant heart . . . .” (Id. at p. 322.) In explaining that holding, Conley stated that a person who carefully weighs the course of action he is about to take and chooses to kill his victim, after considering the reasons for and against it, “is normally capable also of comprehending the duty society places on all persons to act within the law.” (Ibid.) Conley continued: “If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.” (Ibid., italics added.)4 It is this sentence from Conley on which the Court of Appear relied. But that language from Conley described the defendant’s act (the objective component of implied malice), not the defendant’s mental state (the subjective component of implied malice); it is therefore irrelevant to the issue here, which concerns the subjective component—whether the defendant must be aware of the risk of death or only a risk of serious bodily injury.

Conley, supra, 64 Cal.2d 310, did not discuss whether implied malice could be based merely on a defendant’s awareness of the risk of serious bodily injury to another but not the risk of death resulting from the defendant’s actions. That issue, presented here, did not arise in Conley, because there the defendant, who said he was going to kill the victims and did so, could not claim he was aware only of the risk of causing serious bodily injury.

In cases decided shortly before and after Conley, we reiterated the established definition of implied malice as requiring an awareness of the risk that the defendant’s conduct will result in the death of another. One year before Conley was filed, we stated in People v. Washington (1965) 62 Cal.2d 777, 780, 782 [44 Cal.Rptr. 442, 402 P.2d 130], that implied malice required a “conscious disregard for life.” Conley did not at all suggest that it intended to depart from the view expressed in Washington. And two months after Conley, this court in People v. Phillips, supra, 64 Cal.2d at page 582, endorsed its earlier statement in Washington that implied malice requires a “conscious disregard for life." (Italics added.)

We now turn to Poddar, supra, 10 Cal.3d 750, the second of the three decisions that the Court of Appeal cited. In that case, the defendant went to the home of a woman he had dated casually, shot her with a pellet gun, and then killed her with a knife. He was convicted of second degree murder. This court held that the trial court’s jury instruction on second degree murder was defective because it did not explain the concept of diminished capacity as set out in Conley, supra, 64 Cal.2d 310. (Poddar, supra, 10 Cal.3d at pp. 757-759.) In its discussion of diminished capacity, Poddar stated that to prove implied malice, “it must be shown that the accused was both aware of his duty to act within the law and acted in a manner likely to cause death or serious bodily injury despite such awareness.” (Id. at p. 758, italics added.) As in Conley, Poddar referred to serious bodily injury in describing the defendant’s act, the objective component of implied malice. Poddar did not say that the defendant’s mental state, the subjective component of implied malice, at issue here, could be satisfied by proof that the defendant acted with an awareness that his conduct could cause serious bodily injury. Indeed, the defendant in Poddar never claimed that he was unaware that his acts could cause death.

Even if the above discussed language from Conley, supra, 64 Cal.2d at page 322, and from Poddar, supra, 10 Cal.3d at page 758, could be viewed as implying that a second degree murder conviction, on a theory of implied malice, could be based simply on a defendant’s awareness of the risk of causing serious bodily injury, rather than death, that language would lack authoritative force. “ ‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [36 Cal.Rptr.3d 495, 123 P.3d 931], quoting Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613].) “An appellate decision is not authority for everything said in the court’s opinion but only ‘for the points actually involved and actually decided.’ ” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [71 Cal.Rptr.2d 830, 951 P.2d 399].) Because the facts and issues in Conley, supra, 64 Cal.2d 310, and in Poddar, supra, 10 Cal.3d 750, did not encompass the question whether implied malice could be based on a defendant’s awareness of the risk of serious bodily injury alone, the language the Court of Appeal cited from Conley and Poddar lacks authoritative force.

This brings us to Coddington, supra, 23 Cal.4th 529, the last in the trio of decisions relied on by the Court of Appeal. In that case, the defendant lured teenage girls to his mobilehome by telling them they would star in an antidrug video, and then raped them and committed other sexual offenses. He killed two older women who had accompanied the girls as chaperones. The defendant was convicted of two counts of first degree murder with special circumstances, as well as various other offenses, and he was sentenced to death.

Among the many issues the defendant in Coddington raised on appeal was a claim that the trial court had erred in not instructing the jury on second degree murder based on implied malice. Responding to that claim, the Attorney General argued in Coddington that such an instruction was not needed because there was no evidence that the defendant’s offense was less than first degree murder, and that the defendant’s conduct proved that he “acted with actual or presumptive knowledge that serious bodily injury was likely to occur.” (Coddington, supra, 23 Cal.4th at p. 592, italics added.) This court rejected the Attorney General’s argument, explaining that such a mental state (actual or presumptive knowledge that serious bodily injury is likely to occur) “permits an inference of implied malice . . . and does not support a conclusion that no instruction on second degree murder on a theory of implied malice was necessary.” (Ibid.)

Notwithstanding Coddington’s offhand comment that knowledge of the risk of serious bodily injury permits an inference of implied malice, Coddington reiterated the established rule that a trial court must instruct on second degree murder based on implied malice whenever there is evidence “from which the jury could have inferred that appellant acted without intent to kill even though his conduct posed a high risk of death.” (Coddington, supra, 23 Cal.4th at p. 593, italics added.) Thus, Coddington’s offhand comment cannot be viewed as implicitly overruling the decisions of this court discussed earlier (see, ante, at p. 152) declaring that implied malice requires an awareness of the risk of death.

In sum, the three decisions on which the Court of Appeal relied lack persuasive force. Neither Conley, supra, 64 Cal.2d 310, nor Poddar, supra, 10 Cal.3d 750, addressed the issue presented here: whether implied malice can be based on a defendant’s awareness of the risk of great bodily injury but not death resulting from the defendant’s actions. With respect to the comment in Coddington, supra, 23 Cal.4th at page 592, suggesting that knowledge of the likelihood of serious bodily injury permits an inference of implied malice, it is inconsistent not only with the holding in that case but also with the views expressed in other decisions of this court. (See, ante, at p. 152.) We conclude that a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant’s conscious disregard of the risk of serious bodily injury suffices to sustain such a conviction, the Court of Appeal erred.

IV. The Trial Court’s Grant of a New Trial on the Second Degree Murder Charge

We now turn to the second issue raised by the petition for review—whether the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. Such an abuse of discretion arises if the trial court based its decision on impermissible factors (see People v. Carmody (2004) 33 Cal.4th 367, 378 [14 Cal.Rtpr.3d 880, 92 P.3d 369]) or on an incorrect legal standard (see Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435—436 [97 Cal.Rptr.2d 179, 2 P.3d 27]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [146 Cal.Rptr. 623, 579 P.2d 514]).

In granting Knoller a new trial, the trial court properly viewed implied malice as requiring a defendant’s awareness of the danger that his or her conduct will result in another’s death and not merely in serious bodily injury. (See, ante, at pp. 149-151.) But the court’s ruling was legally flawed in other respects. As we explain below, the trial court based its ruling on an inaccurate definition of implied malice, and it inappropriately relied on the prosecutor’s failure to charge codefendant Noel with murder.

As discussed earlier in part II, this court before its decision in People v. Dellinger, supra, 49 Cal.3d 1212, had defined implied malice in two similar but somewhat different ways. Under the Thomas test, malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.); see also Poddar, supra, 10 Cal.3d at pp. 756-757.) Under the Phillips test (People v. Phillips, supra, 64 Cal.2d at p. 587), malice is implied when the killing is proximately caused by “ ‘an 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.’ ” In People v. Dellinger, supra, 49 Cal.3d 1212, we observed that although these two tests “articulated one and the same standard” (id. at p. 1219), the Thomas test contained “obscure phraseology” and had “become a superfluous charge,” so that the “better practice in the future” would be for trial courts to instruct juries in the “straightforward language” of the Phillips test (Dellinger, at p. 1221).5

Here, the trial court properly instructed the jury in accordance with the Phillips test. But when the court evaluated defendant Knoller’s new trial motion, it relied on language from the Thomas test, and as explained below, its description of that test was inaccurate. The court stated that a killer acts with implied malice when the killer “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being” and thus the issue in this case was “whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability” that her conduct would result in someone’s death. (Italics added.) But “high probability of death” is the objective, not the subjective, component of the Thomas test, which asks whether the defendant’s act or conduct “involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.).) The subjective component of the Thomas test is whether the defendant acted with “a base, antisocial motive and with wanton disregard for human life.” (Ibid.) Nor does the Phillips test require a defendant’s awareness that his or her conduct has a high probability of causing death. Rather, it requires only that a defendant acted with a “ ‘conscious disregard for human life’ ” (People v. Dellinger, supra, 49 Cal.3d at p. 1221; see People v. Phillips, supra, 64 Cal.2d at p. 587).

As just shown, in treating the objective component of the Thomas test as the subjective component of that test, the trial court applied an erroneous definition of implied malice in granting defendant Knoller a new trial on the second degree murder charge.

In ruling on Knoller’s motion for a new trial, the trial court also commented that, in its view, codefendant Noel was more culpable than defendant Knoller, and that the district attorney’s failure to charge Noel with murder was a “troubling feature of this case” that “played a role as well” in the court’s decision to grant Knoller a new trial on the second degree murder charge. Dissimilar charging of codefendants, however, is not among the grounds for a new trial in section 1181. Although section 1181 states that a defendant’s new trial motion may be granted only on the grounds stated in that section, several courts have held that new trials may nonetheless be granted on grounds not enumerated in the statute when necessary to protect a defendant’s constitutional right to a fair trial. (See, e.g., People v. Oliver (1975) 46 Cal.App.3d 747, 751 [120 Cal.Rptr. 368] [judicial misconduct]; People v. Davis (1973) 31 Cal.App.3d 106, 109 [106 Cal.Rptr. 897] [unexpected absence of witness].) No published decision, however, has ever approved granting a new trial based on differential treatment of defendants. (See generally People v. Belmontes (1988) 45 Cal.3d 744, 810-813 [248 Cal.Rptr. 126, 755 P.2d 310] [disposition of codefendant’s case is irrelevant to jury’s determination at penalty phase of capital case].)

We specifically do not address whether a new trial could be granted on such a ground, an issue that would involve significant separation of powers considerations. Even assuming a new trial could be granted on such a ground, it is not justified here. Defendant Knoller and codefendant Noel were not similarly situated with regard to their dog Bane’s fatal mauling of Whipple in the hallway of the apartment building where they all lived. The immediate cause of Whipple’s death was Knoller’s own conscious decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. Bringing a more serious charge against the person immediately responsible for the victim’s death was a permissible exercise of prosecutorial discretion, not grounds for a new trial.

V. Conclusion and Disposition

In sum, the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. That court erroneously concluded both that Knoller could not be guilty of murder, based on a theory of implied malice, unless she appreciated that her conduct created a high probability of someone’s death, and that a new trial was justified because the prosecution did not charge codefendant Noel with murder. It is uncertain whether the trial court would have reached the same result using correct legal standards. Moreover, the Court of Appeal, in reversing the trial court’s order, also erred, mistakenly reasoning that implied malice required only a showing that the defendant appreciated the risk of serious bodily injury. Under these circumstances, we conclude that the matter should be returned to the trial court to reconsider its new trial order in light of the views set out in this opinion.

The Court of Appeal’s judgment is reversed and the matter is remanded to that court, with directions to return the case to the trial court for reconsideration of defendant Knoller’s new trial motion in accord with the views expressed in this opinion.

George, C. J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

The petition of appellant The People for a rehearing was denied July 18, 2007.

1

All further statutory citations are to the Penal Code.

2

Our order limiting the issues referred to “great bodily injury,” but the Court of Appeal decision referred to “serious bodily injury.” The two terms are “‘essentially equivalent’” (People v. Burroughs (1984) 35 Cal.3d 824, 831 [201 Cal.Rptr. 319, 678 P.2d 894]), and although there are some differences in the statutory definitions (compare § 243, subd. (f)(4) [defining “serious bodily injury”] with § 12022.7, subd. (f) [defining “great bodily injury”]), those differences are immaterial here.

3

The trial court ruled that letters written by or addressed to codefendant Noel were admissible against defendant Knoller, and vice versa, on a theory that raising the Presa Canario dogs was a joint enterprise. The Court of Appeal rejected defendants’ challenge to this ruling. Both defendants raised the issue in their respective petitions for review. We denied Noel’s petition, and in granting Knoller’s petition we limited review to other issues.

4

In People v. Flannel (1979) 25 Cal.3d 668, 679 [160 Cal.Rptr. 84, 603 P.2d 1], we quoted that passage from Conley, supra, 64 Cal.2d 310 at page 322, in summarizing the doctrine of diminished capacity; we then explained how imperfect self-defense—the issue in Flannel— differed from diminished capacity. Not at issue in Flannel was the distinction between a defendant’s awareness of the risk of serious bodily injury and awareness of the risk of death.

5

For trial courts too, the better practice in the future would be to use the Phillips test, rather than the Thomas test, in ruling on motions for a new trial as well as other matters in which the definition of implied malice is in issue.