Criminal Law - Second Degree Murder
Straightforward decisions: a death for a death.
During the early centuries of English law, anyone convicted of having intentionally killed or inflicted grievous bodily harm upon another was sentenced to death. A few basic defenses could be brought forth. Still, once these justifications had been exhausted, the perpetrator would be compelled to forfeit his life in exchange for the life he had taken, or the grave bodily harm caused.
As centuries passed, society, as represented by Parliament, began to re-assess these strictures. The needed changes were crystallized in the 1957 Homicide Act. This Act, while ameliorating the harshness of previous laws, still mandated that any defendant found guilty of first degree murder must be imprisoned for life, with no hope of parole. Since that time, changes to this Act have been implemented.
While the U.S. has added second degree murder to its lexicon of crimes, (a few jurisdictions adding a third, or rarely even a fourth degree), The UK has retained the judgment of murder in the first degree. A legal representative will, therefore, do all he can to convince a court to reduce his client’s sentence to one of the manslaughter crimes: voluntary or involuntary.
The felony murder rule.
Originating in the UK, this rule became interwoven with the laws regarding felonies in the United States. Although the UK officially abolished this rule, it retained its substance via the theory of joint enterprise. At its inception, the felony murder rule meant that any defendant would automatically be adjudged guilty of murder in the first degree, if a victim died as a result of any felony. Over time, this rule has become more flexible.
In modern terms, it encompasses only those felonies viewed as “inherently dangerous”, in that death or serious injury are highly probable. While varying somewhat, the primary felonies are: arson, kidnapping, burglary, robbery and rape. In addition, the killing must have been somewhat foreseeable. This can be evidenced by such facts as a defendant’s being shown to have carried a gun, knife or other weapon capable of causing death or significant harm.
The claim of having been an accomplice, rather than the actual perpetrator, will not in general relieve that accomplice of equal guilt. The facilitation of such a crime brings one within its rubric in terms of guilt and consequent sentencing. Often, a felony would not have been engineered and could not have succeeded without a co-conspirator serving as a lookout or driver of a getaway vehicle. Still, some jurisdictions will apportion blame where one participant played a truly minimal role in a crime, and was unaware of its likelihood of resulting in lethal force. As the following case illustrates, the plea of one such driver, after a lengthy journey through the U.S. court system, was accepted.
The killing of a farming couple
Some jurisdictions apportion guilt in terms of the part played by each member, when one or more perpetrators are involved. Where this is allowed, the court must be convinced of a marked disparity between the culpability of these co-defendants
1982 case Enmund v. Florida
Sampson and Jeanette Armstrong set out to rob the elderly farm dwellers Thomas and Eunice Kersey. Enmund drove them there, and waited outside while the Armstrong’s went to the house, and rang the doorbell. When Thomas Kersey opened the door, Sampson Armstrong, having made his intentions clear, forced him to stand at gunpoint, while Jeanette Armstrong rushed in to the house and took whatever money she could.
Aware of her husband’s jeopardy, Eunice Kersey might have been expected to comply with Jeanette Armstrong’s demands, but instead she drew out a gun, shooting and wounding her. In retaliation, Samson Armstrong then shot and killed both the Kerseys. They then ran to the car, where Enmund sat at the wheel, ready to speed them away.
Once convicted, both the Armstrong’s and Enmund were sentenced to death.
Eventually, a series of appeals brought by Enmund as to the injustice of his sentence reached the U.S. Supreme Court. Ultimately, it was decided that, although complicit in the over-all crime, Enmund had no reason to anticipate the violence which ensued once the Armstrong’s gained access to the home.
The Supreme Court interpreted the 8th and 14th Amendments to the U.S. Constitution as rendering this penalty undeserved. Citing the 8th amendment’s prohibition against cruel and unusual punishment, the Court held that Enmund had not killed anyone, intended to kill, nor meant for anyone to be killed as a result of his action. In short, Enmund lacked the required mens rea to justify this sentence.
Perhaps this decision was due, to some extent, that Florida imposed the death penalty for first degree murder. This meant if the Supreme Court had accepted the verdict of the Florida Courts, they would have sentenced a young, comparatively innocent man to execution.
What is a weapon?
In Roald Dahl’s short story, Lamb to the Slaughter, A pregnant woman believes her husband is about to abandon her and their coming child for a new paramour.
Perhaps due to a wish to retain some domestic equilibrium, she takes a leg of lamb out of their freezer to cook for their dinner. When her husband orders her not to bother as he is going out, presumably for a rendezvous, she strikes him on the head with the scorned leg of lamb. Upon realizing she has killed him, she plots a stratagem to convince the police of her innocence. Thus, she goes to a market, ostensibly to purchase vegetables and whatever other condiments might enhance the meal. Her alibi established, once at home she phones the police.
When they arrive, she appears both distraught and bewildered. Following their futile search of the home and surrounding areas for a weapon, she invites them to partake in the roast lamb she has readied. During the meal, the self-made widow giggles inside as she hears the officers speculate on the elusiveness of the weapon while in the process of savoring it’s every bite. While this scenario seems beyond credibility, it is by no means infeasible. In any event, it urges us not to dismiss any object which, used with sufficient force, can morph into a weapon.
Death by inhalation
Returning to actual cases, even items created for purposes of self-defense can become deadly weapons, if abused by defendants. This is illustrated in a Florida case where misuse of pepper spray caused the death of an unintended victim.
On September 20, 2012, at approx. 2-15 A.M., 21-year-old Kenyatta Simario Grant and 20-year-old Ronnie Lanard Tyson carried out a planned robbery at a popular truck stop. Targeting a man wearing a medallion on a chain of some value, one of the assailants restrained him, using pepper spray in order to distort his focus, while his co-defendant did all he could to force the chain from his neck by means of rough yanking.
Having freed himself, the victim ran towards his car, with one assailant in pursuit. The presence of a police patrol car put an end to the incident. Meanwhile, a celebration was underway, hosted by people from Jamaica to commemorate an event of cultural pride. An eager crowd had begun to gather for the gala being held at a nearby café. Then, due to the obvious fracas, the crowd surged towards the area where it was occurring.
As the fumes of pepper spray pervaded the air, 28-year-old Kimberly Clarke, began choking and fell to the ground, striking her head on the bumper of a van. Suffering from a heart condition rendered Ms. Clarke vulnerable to the effects of such inhalation. As a result of her fall, she lost consciousness. Brought to a hospital by paramedics, she died shortly thereafter.
Currently, the district attorney is requesting the court to sentence the two assailants to death under the felony murder rule. As discussed above, robbery is viewed as one of those inherently dangerous felonies, locking its perpetrators within the strictures of the felony murder rule if a death occurs as a result of their crime.
Although the victim of the robbery suffered no physical harm, the substance used in this felony infiltrated Ms. Clarke’s system. As to whether or not such a death was foreseeable, this truck stop was central to the local trucking community, extending to some degree, into the area as a whole. Given their apparent knowledge of this spot, the defendants may well have been aware of the crowd expected for the festivity. In any event, as the number of celebrants grew, these accomplices recklessly exposed anyone within range of the chemical sprayed to the consequences of its emanations.
Similarly in 1999 two young men, both unarmed, boarded a taxicab. Once inside, these pretended passengers ordered the driver to vacate his cab, threatening to injure him if he refused to do so. When he complied, they took the $12 he had accrued, then left him seemingly unharmed.
Unbeknown to them, this 45-year-old driver was being treated by his physician with medication for high blood pressure. Apparently, his compromised arterial system became overwhelmed by the adrenalin caused by the alarm of these robbers’ intimidation. Having struggled to a nearby home, he asked its owner to phone the police. Although they did so, the driver collapsed and died of a heart attack before the police could arrive.
Regarding these assailants, the police stated.
“They murdered him just as surely as if they stabbed him or shot him. If a criminal act places someone in a stressful enough situation that their body can’t handle it and that person dies, the persons committing the crime are culpable.”
In the U.S., second degree is viewed in the same way as murder in the first degree, but not construed as reaching that standard of evil. If this definition sounds vague, it is due to the fact that a finding of second degree murder represents a judicial safety net. Still, this category is needed in order to encompass certain crimes which fall between charges of first degree murder and either of the two kinds of manslaughter.
A classic example of second degree murder is found in the 1946 Pennsylvania case of Commonwealth v. Malone. In terms of background, Mr. and Mrs. Malone, along with their 17-year-old son, were staying temporarily in the home of the Long family. The Long family had a young son aged 13 named Billy, and both boys were good friends.
One evening, Malone persuaded Billy, while both sets of parents were out, to join him in a game of Russian roulette with a gun containing one bullet. The younger boy having agreed, Malone took alternate aim at Billy’s head and then his own. On the third pulling of the trigger the gun fired and killed Billy.
The court did not find Malone’s killing of Billy Long to have been in any way deliberate, or involving premeditation. Still, Malone was deemed guilty in that his act had created an extremely high risk of bringing about the death of the victim.
The killing of one spouse or partner, due to savagery by the other, has come to comprise a significant avenue for cases of second degree murder. While lethal beatings have been committed by females, the majority of such crimes are carried out by males, based upon their tendency to possess greater muscular power. The following two recent cases demonstrate this reality.
Kira Steger, a married woman who kept her maiden name after her marriage, was murdered by her husband Jeffery Trevino, due to her wish for a divorce, and his growing suspicion of her liaison with a colleague. Her body was found 2 months after the incident. Having been arrested for causing her death, Trevino recounted that, on their designated “date night”, her continuous texts to her co-worker had wrought his growing rage to the point that, once back at their home, he had beaten her to death. He attributed this killing to an absolute loss of control on his part. However the jury believed he did not intend to kill her and found him guilty of second degree murder without intent.
In a similar case, when the corpse of Dana Pechin was found in her apartment, no-one suspected her partner, George Ruibal, of having caused her demise. Instead, Ms. Pechin’s family and the couple’s friends felt compassion for Ruibal’s share in their loss and sorrow. Ruibal claimed, having visited Ms. Pechin, to have found her injured to the point of unconsciousness. According to his testimony, in anguish, he requested the help of a friend to make an attempt to assist him in caring for her during the next two days. Even so, she died.
His statement would have been accepted, had not a coroner’s report indicated manual strangulation. Inferentially, the question arose as to who might have made such a deliberate attempt to murder Ms. Pechin. Assuming the perpetrator was someone other than Ruibal, why did he fail, given Ms. Pechin’s jeopardy, to phone an ambulance to transport her to the nearest hospital in order to enhance her fragile chance of surviving? It seems unlikely that he believed he and his friend were more able to prevent her death than were those trained to cope with such crises.
This urges us to question what Ruibal feared Pechin might have revealed had she regained consciousness in a medical setting, especially when asked to describe the source and origin of her injuries. It took over four years to bring this case to trial and the jury found Ruibal guilty of second degree murder. At the time of this writing, his sentence is pending, in order to allow the judge time to review aggravating circumstances.
One can only wonder what circumstances could prove aggravating enough to mitigate the sentence appropriate for this level of malevolent harm. Update: He has been sentenced to 40 years in jail.
The devil made him do it?
Often in cases of domestic violence, perpetrators have attributed their crimes to the ingestion/injection of alcohol/drugs.
While there is no question of the mood and mind-altering effects of these chemicals, it is to be hoped the courts adhere to the view of Lord Elwyn-Jones in the UK case of DPP v. Majewski “If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, his course of conduct in reducing himself to that condition supplies the evidence of mens rea. … The drunkenness is in itself an intrinsic, integral part of the crime, the other being the evidence of the unlawful use of force against the victim.”
Conversely, involuntary intoxication, ingested by means of some form of deceit, may be considered as a mitigating factor. Still, the court must be convinced of such facts as a tasteless drug being placed in a drink, punch being spiked without the knowledge of a partaker, or LSD having been hidden in food. This may be a difficult burden of proof to bear by a defendant, especially when charged with the types of crime we have discussed above.
- Arnold H, Loewy: Criminal law in a nutshell: Thomson West 2003
- Dahl, Roald: The Complete Short Stories: Penguin 2013
- Quinn, Francis, Catherine Elliott: Criminal Law: Pearson 2012
- Schmalleger, Frank: Criminal Law today: An introduction with Capstone cases: Prentice Hall 2002
© 2013 Colleen Swan