There are two tiers of murder in Michigan: first-degree murder and second-degree murder. A killing that results in a conviction for first-degree murder will cause the offender to spend the rest of his or her natural life in prison. What are the grounds for a first-degree murder charge?
The elements of second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice and (4) without justification. Malice is defined as “the intent to kill, the intent to cause great bodily harm, or the intent an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” People v Hopson, 178 Mich App 406, 410; 444 NW2d 167 (1989). Malice can be “inferred from evidence that a defendant intentionally set a motion in force likely to cause death or great bodily harm.” People v Reeves, 202 Mich App 706, 712; 510 NW2d 198 (1993). For example, setting a house on fire knowing that there are occupants sleeping inside can constitute setting a force in motion to commit murder.
The elements of first-degree murder include ALL of the elements of second-degree murder plus one or more of the following:
(1) “Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.” MCL 750.316(1)(a).
- “Murder in the first degree requires the existence of a deliberate intention to take life; and any slaying in which a jury should find either the absence of deliberation, or that the intent was to commit another and a lesser injury, must be either murder in the second degree or one of the lighter grades of homicide.” People v Scott, 6 Mich 287, 294 (1859).
- “To premediate is to think about it beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem… [P]remediation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this thought process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a ‘second look’”. People v Morrin, 31 Mich App 301, 329-330; 187 NW2d 434 (1971).
- If “the murder was committed by lying in wait”, then “that murder committed was murder in the first degree.” People v Repke, 103 Mich 459, 470; 61 NW 861 (1895). It is not required to further prove that there was premeditation or deliberation.”
- “A charge of first-degree murder where poisoning is the aggravating factor elevating it from second-degree murder is proper without evidence of premeditation or deliberation.” People v Taylor, 418 Mich 904; 341 NW2d 468 (1983). ‘To constitute murder, the killing must have been perpetrated with malice aforethought, either express or implied.” People v Austin, 221 Mich 635, 644; 192 NW 590 (1923). However, “[w]hen poison has been administered and death ensues, there is an inference that the killing was intentional and with malice aforethought.” People v Brown, 37 Mich App 192, 193; 194 NW2d 560 (1971).
(2) “Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree, torture, aggravated stalking, or unlawful imprisonment.” MCL 750.316(1)(b).
- “Michigan does not have a statutory felony-murder doctrine which designates as murder any death occurring in the course of a felony without regard to whether it was the result if accident, negligence, recklessness, or willfullness. Rather, Michigan has a statute which makes a murder occurring in one of the enumerated felonies a first degree murder.” People v Aaron, 409 Mich 672, 718; 299 NW2d 304 (1980). “The common-law felony murder rule for other felonies in Michigan is abolished.” Id at 723.
- The underlying felonious act and the killing can be a single event. For example, a person can be convicted of first-degree murder when he committed a single blow to a child’s head that fractured the skull and caused death. If “the jury found that defendant possessed both the malice to commit murder and the intent to commit first degree child abuse”, then the first-degree murder conviction can stand. People v Magyar, 250 Mich App 408, 412; 648 NW2d 215 (2002).
- It is not necessary that the murder be contemporaneous with the enumerated felony, but the statute requires that the defendant intended to commit the underlying felony at the time that the homicide occurred. People v Brannon, 194 Mich App 121; 486 NW2d 83 (1992).
- Felony-murder does not require the specific intent to kill. People v Johnson, 93 Mich App 667, 670; 287 NW2d 311 (1979). However, it does require a showing of malice. People v Small, 120 Mich App 442, 447; 327 NW2d 504 (1982). “Only wanton and willful disregard of the likelihood that the natural tendency of the person’s behavior is to cause death or great bodily harm must be shown.” In re Robinson, 180 Mich App 454, 463; 447 NW2d 765 (1989).
(3) “A murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer.” MCL 750.316(1)(c).
- The fact that the person killed was a peace officer or corrections officer does not make this offense a strict liability crime. “The facts of a particular case may indicate that the defendant was unaware that the victim was a peace or corrections officer, making conviction under this statute impermissible while nevertheless supporting a second-degree murder conviction.” People v Herndon, 246 Mich App 371, 388; 633 NW2d 376 (2001).
- “Peace officer” means a police or conservation officer of the United States, this state, a political subdivision of this state, or another state (or a political subdivision therof). MCL 750.316(2)(d). “Corrections officer” means a prison or jail guard or personnel, any personnel of a boot camp, special alternative incarceration unit or other minimum security correctional facility, or a parole or probation officer. MCL 750.316(2)(b).
The penalty for first-degree murder is life in prison without the possibility of parole. MCL 750.316(1).
Despite the serious punishment, there are many possible defenses to first-degree murder that can be asserted by a skilled criminal defense attorney:
- DEADLY FORCE SELF-DEFENSE – “An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:”
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” MCL 780.972(1)(a).
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.” MCL 780.972(1)(b).
A person can use deadly force in self-defense only where it is necessary to do so. If the individual could have safely retreated but did not do so, it is a consideration for the jury to consider in whether or not the individual honestly and reasonably believed he or she needed to use deadly force in self-defense. A person is not required to retreat under the following circumstances:
- He or she was attacked in his own home, or he or she believed the attacker is about to use a deadly weapon, or if the person is subject to a sudden, fierce and violent attack. MCL 780.951(1)(a); M Crim JI 7.16(2).
- He or she was not engaged in the commission of a crime at the time that the deadly force is used, he or she has a legal right to be where he or she is at that time, and he or she has an honest and reasonable belief that the use of deadly force is necessary to prevent imminent death, great bodily harm or sexual assault of himself or herself, or another person. MCL 780.951(1)(b); M Crim JI 7.16(3).
- LACK OF PREMEDITATION – The time interval required for premeditation is one which is sufficient to “afford a reasonable man time to subject the nature of his response to a second look”. “Factors to be considered when determining whether an accused had an opportunity to give his actions a second look include (1) consideration of the previous relationship, (2) the accused’s actions prior to the killing, (3) circumstances of the killing itself, and (4) the accused’s conduct after the homicide.” People v Johnson, 113 Mich App 650, 661; 318 NW2d 525 (1982). If there is no premeditation, then the court will have to consider a lesser offense such as second-degree murder or manslaughter.
- LACK OF DELIBERATION – If there was no evidence of planning and the circumstances of the killing were such that “the defendant was forced to make an impulsive, sudden and hasty decision…”, then the court will have to consider a lesser offense such as second-degree murder or manslaughter. People v Vail, 393 Mich 460, 472; 227 NW2d 535 (1975).
- LACK OF MALICE – The law does not “imply malice from the unprovoked, inexcusable, unjustifiable killing of another…”. People v Woods, 416 Mich 581, 597; 331 NW2d 707 (1982). For example, drunk driving alone does not establish the “egregious circumstances” needed for malice to sustain a murder conviction. People v Goecke, 457 Mich 442, 467; 579 NW2d 868 (1998). Some evidence of malice that was misconduct beyond drunk driving around the time of the fatal accident include evidence of traffic violations, speeding, minor collisions, near collisions and erratic driving. Id at 470-473.
- KILLING WAS ACCIDENTAL – Malice for murder requires “the intent to kill, the intent to cause great bodily harm, or the intent an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” However, conduct that amounts to negligence only (e.g. improper storage of gasoline by flammable objects that leads to fatal fire) will not be enough to sustain a murder conviction.
- ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the murder occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi.
- LEGAL INSANITY – A person may be found not guilty by reason of insanity. A person is legally insane if, as a result of mental illness or intellectual disability, he or she was incapable of understanding the wrongfulness of his or her conduct, or was unable to conform his or her conduct to the requirements of the law. The defendant has the burden of proof to show that he or she was legally insane at the time of the killing.
A conviction of first-degree murder will cause you to spend the rest of your life in prison. You can’t leave anything to chance. You must have the very best legal representation from the beginning to ensure the best outcome in your case. While you can appeal your conviction, you will spend many years in state prison trying to fight an uphill battle to get a new trial. The stakes are too high to settle for any less!
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.