Legal Memorandum Memo To: Judge

Legal Memorandum

MEMO TO: Judge a. Offense

Possible Jury Instructions for Murder Case

STATE ISSUE/QUESTION: Besides the Murder Charge what if any lesser included offenses (13A-1_9) jury charges can legally be given under these facts and why?

In this case the defendant has been charged Ala. Code § 13A-6-2 (Murder) for the intentional killing of his mistress. Murder is the killing of a human being by another human being with malice aforethought. Aforethought means that there has to be a malicious mental state present at the time of the homicide, and not afterwards (Joshua Dressler, Criminal Law § 10, n. 2 (2005). Since the facts of this case do not support the fact that there was any aforethought on the part of the defendant it would be appropriate to include jury instructions for any lesser included offenses as well. According to Ala. Code § 13A-1_9 (Lesser Included Offenses):

(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if: (1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged, or (2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense, or (3) It is specifically designated by statute as a lesser degree of the offense charged, or (4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.

(b) The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.

The lesser included offenses in this case would include voluntary manslaughter. Voluntary manslaughter is an unlawful killing of a human being by another human being without malice aforethought (Joshua Dressler, Criminal Law § 10, n. 3 (2005). Voluntary manslaughter requires intent but is diminished by the fact that the "killer" was subject to adequate provocation. In this case there had been verbal threats of "making him pay" and he knew that his lover had a gun at her home. When she came to his house and he believed that he was in "imminent sense of danger" then one could say he did use force to defend himself (self-defense). However, what is tricky is that he is a trained police officer who is experienced at using a gun and could have possibly wounded her rather than kill her. This brings up the question of his intent again.

Voluntary manslaughter must meet four essential elements:

1. Adequate provocation: He acted in response to provocation that would have been sufficient to cause a reasonable person to lose self-control. Seeing someone walking towards a person, telling them that they are going to pay with something that looks like a weapon might make a reasonable person believe that there was provocation.

2. State of Passion: The defendant was in fact in a "heat of passion" at the time he acted. Most defense attorneys would argue that because he saw her drive up to the house, then he immediately went outside (i.e. didn't go upstairs, to the restroom, get on the phone) so it could perhaps qualify.

3. Suddenness: There must be no time for a reasonable person to cool off. The amount of time between the provocation and the killing in this case was not great enough that a reasonable person would have "cooled off" i.e. regained his self-control. In this case the provocation of her walking towards him and telling him "now you are going to pay" with the appearance of a weapon under her sweater does not give the reasonable "ordinary" person time to cool off. However, he is a police officer, and there is a question as to whether he should be held to a different standard than the reasonable person standard.

4. Causal Connection: There must be a fundamental link between the provocation, the passion, and the fatal act must be proved.

ISSUE 2 -- STATE ISSUE/QUESTION: Can a self-defense charge be given to the jury and if so why?

Ala. Code § 13-A-3-23 (Self-Defense) states that:

(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:

(1) Using or about to use unlawful deadly physical force; or (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.

(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety:

(1) By retreating, except that the actor is not required to retreat:

a. If he is in his dwelling or at his place of work and was not the original aggressor; or

b. If he is a peace officer or a private person lawfully assisting a peace officer at his direction.

In this case it could be argued that the Defendant believed that the mistress was about to use imminent unlawful physical force, in the fact that he thought that she might be carrying a gun concealed under her sweater. The facts state that after the killing a small pistol was found at the deceased's home, but nowhere does it state that the Defendant knew that she owned at gun. In this case the self-defense charge could be given to the jury. The major question that they will have to answer is whether or not in this situation there was a necessity to use to deadly force. A person may not use deadly force unless it is necessary. On the other hand a person may not use deadly fore to repel an unlawful deadly attack if more moderate (non-deadly) force will do the job (Joshua Dressler, Criminal Law § 6, n. 2 (2005). In this case since the Defendant was a trained officer of the law, he more than likely could have shot to wound instead of shooting to kill.

ISSUE 3 -- STATE ISSUE/QUESTION: Does the Defendant's status as a police officer entitle him to a charge on the defense regarding law enforcement under the defenses section of the code?

Ala. Code § 13A-3-27 (Use of Force in Making an Arrest or Preventing an Escape) states that:

(a) A peace officer is justified in using that degree of physical force which he reasonably believes to be necessary, upon a person in order:

(1) To make an arrest for a misdemeanor, violation or violation of a criminal ordinance, or to prevent the escape from custody of a person arrested for a misdemeanor, violation or violation of a criminal ordinance, unless the peace officer knows that the arrest is unauthorized; or (2) To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while making or attempting to make an arrest for a misdemeanor, violation or violation of a criminal ordinance, or while preventing or attempting to prevent an escape from custody of a person who has been legally arrested for a misdemeanor, violation or violation of a criminal ordinance.