CRM 5
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ReactionPaper5Guidelines.docxReaction Paper Guidelines
Reaction papers are a critical component of the conversation that will take place in this course. There will be a total of five different reaction papers throughout the course. Each of the five reaction papers will be approximately two pages in length. The text will be double-spaced and formatted using APA format. Students should clearly identify their topic and present their personal viewpoint or perspective; however, students must also present a factual basis for that viewpoint (as opposed to an opinion paper). All references supporting the factual basis must be properly cited to the original sources in accordance with APA guidelines.
· Excusable homicide
While you are primarily addressing the topic selected, you may want to discuss or expand on a topic presented in the textbook, a case dealing with the subject, or a current event from the news or Internet, and present your viewpoint or perspective on that item as it relates to the issue present in your chosen topic.
9-3aHistory of Murder Law
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Our modern law of criminal homicide took centuries to develop. Over several centuries, the English common law judges had developed two broad kinds of homicide, criminal and noncriminal. By the 1550s, the common law judges, with the help of a growing number of statutes, had further divided criminal homicide into murder and manslaughter and noncriminal homicide into justifiable and excusable homicide (Chapters 5 and 6).
By 1700, the English common and statute laws of homicide and the American colonies’ law recognized three kinds of homicide:
1. justifiable homicide , Killing in self-defense (Chapter 5), capital punishment, and law enforcement use of deadly force
2. excusable homicide , Killings done by someone “not of sound memory and discretion” (insane and immature) (Chapter 6)
3. criminal homicide , All homicides that are neither justified nor excused
Here’s how Blackstone defined the elements of common law murder in 1769:
1. Sound memory and discretion excused “lunatics and infants” from criminal liability.
2. “Unlawfully” meant killing without justification (Chapter 5) or excuse (Chapter 6).
3. Killeth included causing death by “poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome” (196).
4. Reasonable creature in being was someone already born alive and breathing at the time of the killing (198).
5. Under the king’s peace meant “to kill an alien, a Jew, or an outlaw, who are all under the king’s protection, is as much murder as to kill the most regular Englishman; except he be an alien enemy in time of war” (198).
6. With malice aforethought, express or implied.
Let’s take a closer look at the mental element—killing with malice aforethought . At first, “malice” meant with specific intent or killing on purpose—and probably with some amount of spite, hate, or bad will. “Aforethought” meant the acts were planned in advance of the killing. The English homicide statutes in the 1550s defined “murder” as killing someone intentionally by “poison” or “lying in wait,” classic examples of acts planned in advance. So the only kind of murder was intentional, premeditated killing—in other words, killing with malice aforethought.
After that, the judges invented new kinds of murder. First, they added intentional (malicious) killings that weren’t premeditated. These included sudden killings during the heat of passion, “unreasonably” provoked by the victim’s conduct. We’ll discuss “unreasonably” provoked when we get to voluntary manslaughter, but it’s enough for now to think of it this way: if a reasonable person would have cooled off between the provocation and the killing, the killing was murder, even though it wasn’t premeditated. For example, suppose Pete, a student in my Criminal Law class, doesn’t like being touched by men. As he’s leaving class, Nick comes up, puts his arm around Pete, and says, “Boring class, huh?” Very offended, Pete pulls away, saying “Back off, jerk.” Nick responds with, “Oh, come on, I’m just being friendly” and approaches Pete again. Pete pulls out his gun and shoots Nick; Nick dies. Pete was “unreasonably” provoked.
Next, the judges added unintended killings if they occurred during the commission of felonies. For example, an arsonist set fire to a house when she believed no one was at home. Unfortunately, someone was at home, and he burned to death. She didn’t intend to kill him, and because she didn’t intend to kill him, obviously she couldn’t have planned to kill him before she set fire to the house.
Then came depraved heart murder , defined as extremely reckless killings. Recall here the definition of “recklessly” (Chapter 4): knowingly creating a substantial and unjustifiable risk. In the case of a depraved heart murder, the risk is of death. For example, a roofer on a tall building, without bothering to look, throws a heavy board onto a busy street below; the board kills three people. He didn’t intend to kill them, but he knew he was creating a high risk that the board would kill someone, and he threw it anyway. These are extremely reckless killings, or depraved heart murders.
The judges took one last step away from the premeditated, intentional killing requirement. They created intent to cause serious bodily injury murder . No intent to kill was required when a victim died following acts triggered by the intent to inflict serious bodily injury short of death. Suppose a parent has a seventeen-year-old son who regularly drinks heavily, cuts school, and steals to buy alcohol; he’s just generally out of control. Talking to him, grounding him, taking away his car, sending him to counseling—nothing works. So his father, angry and frustrated, decides to “beat him within an inch of his life.” He does, and his son dies. He commits an intent to cause serious bodily injury murder.
Serious bodily injury has a technical meaning. Some states define it by statute. Here’s Tennessee’s (Tennessee Criminal Code 2005, 39-11-106(a)(34)) definition, which is similar to other states’ definitions: “Serious bodily injury” means bodily injury that involves:
1. A substantial risk of death;
2. Protracted unconsciousness;
3. Extreme physical pain;
4. Protracted or obvious disfigurement; or
5. Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.
Throughout the centuries when judges were expanding the definition of “murder” to include these very different kinds of killings, they continued to call them all by the same name—“killing another with malice aforethought.” But they added the critical phrase “express or implied.” “Express” malice aforethought was reserved for killings that fit the original meaning of “murder”—intentional killings planned in advance.
According to Blackstone (1769):
Express malice is when one, with a sedate deliberate mind and formed design, doth kill another, which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. (199)
“Implied” malice aforethought referred to the four additional kinds of murder we just discussed:
1. Intentional killings without premeditation or reasonable provocation
2. Unintentional killings during the commission of felonies
3. Depraved heart killings
4. Intent to inflict grievous bodily harm killings
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9-4aVoluntary Manslaughter
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If upon a sudden quarrel two persons fight, and one of them kills the other, this is [voluntary] manslaughter. And, so it is, if they upon such an occasion go out and fight in a field, for this is one continued act of passion and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable, since there is no absolute necessity for doing so to preserve himself, yet neither is it murder for there is no previous malice. —Blackstone (1769, 191)
Blackstone’s description of voluntary manslaughter in the late 1700s is an excellent way to begin our discussion of today’s voluntary manslaughter. Voluntary manslaughter is about letting your anger get the best of you in the worst possible way—killing another person. The law of voluntary manslaughter (as in all criminal homicides) requires proof of the actus reus, mens rea, causation, and death. One additional element has to be proved: the circumstance element of adequate provocation (discussed next). (See the Elements of Voluntary Manslaughter illustration.)
Criminal law aims to bridle passions and build self-control, but it also recognizes the frailty of human nature. The law of voluntary manslaughter takes into account both the seriousness of this felony and the reality of human frailty. So although a sudden intentional killing in anger is a very serious felony, it’s not the most serious; that’s reserved for murder. Let’s be clear that the law of voluntary manslaughter doesn’t reward individuals who give in to their rages by letting them walk; it punishes them severely, but it punishes them less than they’d get for murder. Why? Because it recognizes the effect that adequate provocation can have. But what is adequate provocation, the circumstance element of voluntary manslaughter?
Adequate Provocation
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Voluntary manslaughter has one element not present in murder, and one we haven’t discussed, namely, the circumstance element of adequate provocation. In voluntary manslaughter, adequate provocation is the trigger that sets off the sudden killing of another person.
Not everyone who is provoked to fly into a rage and suddenly kills has committed voluntary manslaughter instead of murder. The law requires adequate provocation. Adequate provocation has three elements:
1. It has to be a provocation that the law recognizes.
2. The defendant himself has to be provoked (subjective provocation)
3. The provocation has to be one that would provoke a reasonable person under the circumstances in this case (objective provocation).
The Maryland Court of Appeals put it this way in Dennis v. State (1995):
For a provocation to be “adequate,” it must be “calculated to inflame the passion of a reasonable person and tend to cause that person to act for the moment from passion rather than reason.” [emphasis added]
The Maryland Court describes one aspect of “adequacy.” There is another,
which flows from the requirement that the passion be that of a reasonable person; the provocation must be one the law is prepared to recognize as minimally sufficient, in proper circumstances, to overcome the restraint normally expected from reasonable persons. There are many “slings and arrows of outrageous fortune” that people either must tolerate or find an alternative way, other than homicide, to redress. (695)
The thinking is that reasonable persons, however great the provocation, would never kill someone except in self-defense (Chapter 5). That’s why voluntary manslaughter isn’t justifiable homicide; it’s only a lesser version of intentional murder.
Criminal Law in Focus
Four “Adequate” Provocations
1. Mutual combat (fighting). Only serious fights qualify as adequate provocation; scuffles don’t. Some batteries—but not all offensive touching (see Chapter 10)—are adequate provocation. Being pistol whipped on the head, being struck hard in the face by fists, or enduring “staggering” body blows qualify. Being slapped or shoved doesn’t.
2. Assault and battery (Chapter 10). Assault without body contact is sometimes adequate provocation. In Beasley v. State (1886), a man shot at Beasley and missed him. Beasley was so enraged he shot his attacker in the back as the assailant ran away. The court ruled the shot in the back wasn’t justified as self-defense, but the initial incident was provocative enough to reduce murder to manslaughter.
Insulting gestures by themselves aren’t adequate provocation, but if they indicate an intent to attack with deadly force, they are. So “flipping someone the bird” isn’t adequate provocation, but waving a gun around in a threatening manner can be.
3. Trespass (see Chapter 11). Trespassing is adequate provocation only if the trespassers invade a home and threaten someone with death.
4. Adultery. Almost everywhere spouses who catch their spouse in an act of adultery are reasonably provoked. In most states, the law extends to spouses who reasonably believe their spouses are committing adultery, even though they don’t see it happening, or it’s not true.
“Sudden Heat of Passion” with No “Cooling-Off” Period
LO8
Voluntary manslaughter requires killing in the “sudden heat of passion” with no “cooling-off” period (Perkins and Boyce 1982, 95–96). Whether the actual time between the provocation and the killing—seconds, hours, or even days—qualifies as the “sudden heat of passion” depends upon the facts of the individual case. Courts apply an objective test of cooling-off time ; namely, would a reasonable person under the same circumstances have had time to cool off? If defendants have a reasonable time for their murderous rages to subside, the law views their killings as murders even if they take place immediately following the provocations.
A jury convicted Charles of second-degree murder. He appealed. The appeals court ruled that although the incest and rape couldn’t justify the killing, they could be used to reduce Charles Flory’s crime to voluntary manslaughter because a jury could find that Flory’s passion hadn’t reasonably cooled. The court said that the heinous combination of incest and rape was more than enough to keep a reasonable person in a murderous rage for at least several days (464).
Causation
LO8
To prove voluntary manslaughter, the prosecution has to prove that the provocation caused the passion and the killing. Suppose Sonny intends to kill his wife Carly because she lied to him. He goes to her bedroom, finds her in bed with his worst enemy, and shoots her to death. Is it voluntary manslaughter or murder? It’s murder, because Carly’s lie, not her adultery, provoked Sonny to kill her.
Let’s look more closely at causation, or triggers, the law considers adequate provocation. Is provocation by words enough? How about provocation by spouses and other intimates? Should nonviolent advances by a gay person or “gay panic” by the killer be viewed as adequate provocation? We’ll examine each of these questions next.
Provocation by Words
It’s often said that words are never adequate provocation. That was true when the “words can never provoke” rule was created in the days of the common law. It’s still the rule in most states but not everywhere. For example, the Minnesota Criminal Code provides:
§ 609.20 Manslaughter in the First Degree
Whoever does any of the following is guilty of manslaughter in the first degree and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both: intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation.
There are more signs besides the Minnesota provision that the bright-line rule “words can never provoke” isn’t as bright as it used to be. Some courts have adopted a more flexible approach that “words can sometimes amount to adequate provocation” (LaFave 2010, 823–24). California and Pennsylvania courts have adopted the “last-straw” rule (also called the “long smoldering” or “ slow burn” rule ) of adequate provocation. It’s defined as “a smoldering resentment or pent-up rage resulting from earlier insults or humiliating events culminating in a triggering event that, by itself, might be insufficient to provoke the deadly act” (Dennis v. State 1995, 689).
Probably the most significant development is the adoption by several states of the Model Penal Code (MPC) extreme mental or emotional disturbance manslaughter provision:
Section 210.3 Manslaughter
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 the person in the actor’s situation under the circumstances as he believes them to be. (ALI 1985, Model Penal Code)
Other states (probably most) continue to follow the words-can-never-provoke rule. Maryland is one. In Dennis v. State (1995), for example, the Maryland Court of Appeals rejected the last-straw rule. John Patrick Dennis married his high school sweetheart Robin when she became pregnant with their child. According to Dennis, he worked hard to support his family, but they ran into money problems because of Robin’s illegal drug use and spending habits.
Robin moved out of their house and in with her boyfriend, Dantz. After learning that Robin and Dantz did drugs in front of their son, Dennis became really agitated. He went to confront them at Dantz’s. When he got there, he saw Robin and Dantz through the window; they were hugging and maybe getting “sexual.” Dennis claims to have blacked out at that point. Robin called the police, screaming that Dantz was dead (690).
Dennis was convicted of first degree murder. The trial court rejected his claim that he was adequately provoked. He appealed. The Court of Appeals affirmed, rejecting the last-straw rule, and held that “rejected taunts and verbal assaults” aren’t “adequate provocation, even when taking on their humiliating and enraging character from antecedent events” (689).
Provocation by Intimates
According to the common law paramour rule , a husband who caught his wife in the act of adultery had adequate provocation to kill. (Some state statutes went even further than the common law rule; they called paramour killings justifiable homicide.) In the early days, the rule was only available to husbands. Today, it applies to both. Many cases have held that it’s voluntary manslaughter for a spouse to kill the adulterous spouse, the paramour, or both, if the killing took place in the first heat of passion following the sight of the adultery.
Many voluntary manslaughter cases in states that have rejected the paramour rule and adopted the MPC rule don’t involve “sordid affairs and bedside confrontations.” According to Professor Victoria Nourse (1997), significant numbers of cases in her empirical study of states who’ve adopted the MPC extreme mental or emotional disturbance manslaughter provision (quoted earlier)
involved no sexual infidelity whatsoever, but only the desire of the killer’s victim to leave a miserable relationship. Reform has permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order.
Even infidelity has been transformed under reform’s gaze into something quite different from the sexual betrayal we might expect—it is the infidelity of a fiancé who danced with another, of a girlfriend who decided to date someone else, and of the divorcee found pursuing a new relationship months after the final decree. (1332–33)
Provocation by Nonviolent Homosexual Advance (NHA)
Mike, an honors student at the local junior college, plays quarterback on the football team. Good-looking and well-liked by his classmates, Mike prides himself on being an All-American guy. One day, Mike takes a hard fall on his shoulder during football training. After practice, Mike decides to relax in the school’s sauna where he finds his friend and fellow teammate Gary. Gary asks him about his shoulder. Mike tells him that it’s pretty sore. Gary, who is openly gay, asks if Mike wants him to massage his shoulder. Mike says that would be great.
As these thoughts are racing through his mind, Mike feels Gary’s hands move down to his legs, then up his thighs, underneath the small white towel. Gary starts to rub Mike’s buttocks. Mike jumps up and yells, “You pervert! What the f––– do you think you’re doing!” Mike starts punching and kicking until Gary falls to the ground. Even though Gary is not fighting back, Mike continues to beat and stomp on him until he stops moving. Gary dies the next day. (Lee 2003, 1–2)
Did He Commit First-Degree Murder?
Case
In Commonwealth v. Schnopps (1983), the trial court rejected George Schnopps’s provocation argument and he was convicted of first degree murder. At a retrial, Schnopps was convicted again of first degree murder. The Massachusetts Supreme Judicial Court affirmed.
Commonwealth v. Schnopps 459 N.E.2d 98 (Mass. 1983)
History
George Schnopps, the defendant, was convicted before the Superior Court, Berkshire County, Massachusetts, of first-degree murder of his estranged wife and of unlawfully carrying a firearm. At a retrial, the defendant, Schnopps, again was convicted of first-degree murder, and he appealed again. The Massachusetts Supreme Judicial Court affirmed.
ABRAMS, J.
Facts
On October 13, 1979, George Schnopps fatally shot his wife (Marilyn) of 14 years. The victim and Schnopps began having marital problems approximately six months earlier when Schnopps became suspicious that his wife was seeing another man. Schnopps and his wife argued during this period over his suspicion that she had a relationship with a particular man, whom Schnopps regarded as a “bum.” On a few occasions Schnopps threatened to harm his wife with scissors, with a knife, with a shotgun, and with a plastic pistol.
A few days prior to the slaying, Schnopps threatened to make his wife suffer as “she had never suffered before.” However, there is no evidence that Schnopps physically harmed the victim prior to October 13.
On October 12, 1979, while at work, Schnopps asked a coworker to buy him a gun. He told the coworker he had been receiving threatening telephone calls. After work, Schnopps and the coworker went to Pownal, Vermont, where the coworker purchased a .22-caliber pistol and a box of ammunition for the defendant. Schnopps stated he wanted to protect himself and his son, who had moved back with him.
Schnopps and his coworker had some drinks at a Vermont bar. The coworker instructed Schnopps in the use of the .22-caliber pistol. Schnopps paid his coworker for the gun and the ammunition. While at the bar Schnopps told the coworker that he was “mad enough to kill.” The coworker asked Schnopps “if he was going to get in any trouble with the gun.” Schnopps replied that “a bullet was too good for her, he would choke her to death.” Schnopps testified that his wife had left him three weeks prior to the slaying. He claims that he first became aware of problems in his 14-year marriage at a point about six months before the slaying. According to Schnopps, on that occasion he took his wife to a club to dance, and she spent the evening dancing with a coworker.
On arriving home, Schnopps and his wife argued over her conduct. She told him that she no longer loved him and that she wanted a divorce. Schnopps became very upset. He admitted that he took out his shotgun during the course of this argument, but he denied that he intended to use it.
During the next few months, Schnopps argued frequently with his wife. Schnopps accused her of seeing another man, but she steadfastly denied the accusations. On more than one occasion Schnopps threatened his wife with physical harm. He testified he never intended to hurt his wife but only wanted to scare her so that she would end the relationship with her coworker.
One day in September 1979, Schnopps became aware that the suspected boyfriend used a “signal” in telephoning Schnopps’s wife. Schnopps used the signal, and his wife answered the phone with “Hi, Lover.” She hung up immediately when she recognized Schnopps’s voice. That afternoon she did not return home. Later that evening, she informed Schnopps by telephone that she had moved to her mother’s house and that she had the children with her. On that day she moved to her mother’s home and took their three children with her. (The children were two daughters, age thirteen and age four, and a son, age eleven.)
On October 6, the son returned to his father’s home. She told Schnopps she would not return to their home. Thereafter she “froze me out” and would not talk to him. During this period, Schnopps spoke with a lawyer about a divorce and was told that he had a good chance of getting custody of the children due to his wife’s “desertion and adultery.”
On the day of the slaying, Schnopps told a neighbor he was going to call his wife and have her come down to pick up some things. He said he was thinking of letting his wife have the apartment. This was the first time Schnopps indicated he might leave the apartment. He asked the neighbor to keep the youngest child with her if his wife brought her so he could talk with his wife.
Schnopps told his wife that he wanted his children at home and that he wanted the family to remain intact. Schnopps cried during the conversation, and begged his wife to let the children live with him and to keep their family together.
His wife replied, “No, I am going to court, you are going to give me all the furniture, you are going to have to get the Hell out of here, you won’t have nothing.” Then, pointing to her crotch, she said, “You will never touch this again, because I have got something bigger and better for it.”
Schnopps said that these words “cracked” him. He explained that everything went “around” in his head, that he saw “stars.” He went “toward the guns in the dining room.” He asked his wife, “Why don’t you try” (to salvage the marriage). He told her, “I have nothing more to live for,” but she replied, “Never, I am never coming back to you.”
The victim jumped up to leave and Schnopps shot her. He was seated at that time. He told her she would never love anyone else. After shooting the victim, Schnopps said, “I want to go with you,” and he shot himself.
Shortly before 3:00 p.m., Schnopps called a neighbor and said he had shot his wife and also had tried to kill himself. Schnopps told the first person to arrive at his apartment that he shot his wife “because of what she had done to him.”
Neighbors notified the police of the slaying. On their arrival, Schnopps asked an officer to check to see if his wife had died. The officer told him that she had, and he replied, “Good.” A police officer took Schnopps to a hospital for treatment of his wounds. The officer had known Schnopps for 29 years. Schnopps said to the officer that he would not hurt a fly. The officer advised Schnopps not to say anything until he spoke with a lawyer.
Schnopps then said, “The devil made me do it.” The officer repeated his warning at least three times. Schnopps said that he “loved his wife and his children.” He added, “Just between you and I, I did it because she was cheating on me.” The victim died of three gunshot wounds to the heart and lungs. Ballistic evidence indicated that the gun was fired within two to four feet of the victim. The evidence also indicated that one shot had been fired while the victim was on the floor.
The defense offered evidence from friends and coworkers who noticed a deterioration in Schnopps’s physical and emotional health after the victim had left Schnopps. Schnopps wept at work and at home; he did not eat or sleep well; he was distracted and agitated. On two occasions, he was taken home early by supervisors because of emotional upset and agitation. He was drinking.
Schnopps was diagnosed at a local hospital as suffering from a “severe anxiety state.” He was given Valium. Schnopps claimed he was receiving threatening telephone calls. Schnopps and the Commonwealth each offered expert testimony on the issue of criminal responsibility.
Schnopps’s expert claimed Schnopps was suffering from a “major affective disorder, a major depression,” a “psychotic condition,” at the time of the slaying. The expert was of the opinion Schnopps was not criminally responsible.
The Commonwealth’s expert claimed that Schnopps’s depression was a grief reaction, a reaction generally associated with death. The expert was of the opinion Schnopps was grieving over the breakup of his marriage, but that he was criminally responsible.
The judge instructed the jurors on every possible verdict available on the evidence. The jurors were told they could return a verdict of murder in the first degree on the ground of deliberately premeditated malice aforethought; murder in the second degree; manslaughter; not guilty by reason of insanity; or not guilty.
Opinion
On appeal, Schnopps does not now quarrel with that range of possible verdicts nor with the instruction which the trial court gave to the jury. Nor does Schnopps now dispute that there may be some view of some of the evidence which might support the verdict returned in this matter.
Rather, Schnopps claims that his case is “not of the nature that judges and juries, in weighing evidence, ordinarily equate with murder in the first degree.” Schnopps therefore concludes that this is an appropriate case in which to exercise our power under G.L. c. 278, § 33E. We do not agree.
Pursuant to G.L. c. 278, § 33E, we consider whether the verdict of murder in the first degree was against the weight of the evidence, considered in a large or nontechnical sense. Our power under § 33E is to be used with restraint.
Moreover, “We do not sit as a second jury to pass anew on the question of Schnopps’s guilt.” Schnopps argues that the evidence as a whole demonstrates that his wife was the emotional aggressor, and that her conduct shattered him and destroyed him as a husband and a father. Schnopps points to the fact that he was not a hoodlum or gangster, that he had no prior criminal record, and that he had a “good relationship” with his wife prior to the last six months of their marriage. Schnopps concludes these factors should be sufficient to entitle him to a new trial or the entry of a verdict of a lesser degree of guilt.
The Commonwealth argues that the evidence is more than ample to sustain the verdict. The Commonwealth points out that at the time of the killing there was not a good relationship between the parties; that Schnopps had threatened to harm his wife physically on several occasions; and that he had threatened to kill his wife. Schnopps obtained a gun and ammunition the day before the killing.
Schnopps arranged to have his younger child cared for by a neighbor when his wife came to see him. The jury could have found that Schnopps lured his wife to the apartment by suggesting that he might leave and let her live in it with the children. The evidence permits a finding that the killing occurred within a few minutes of the victim’s arrival at Schnopps’s apartment and before she had time to take off her jacket.
From the facts, the jury could infer that Schnopps had planned to kill his wife on October 13, and that the killing was not the spontaneous result of the quarrel but was the result of a deliberately premeditated plan to murder his wife almost as soon as she arrived.
Ballistic evidence indicated that as the victim was lying on the floor, a third bullet was fired into her. From the number of wounds, the type of weapon used, as well as the effort made to procure the weapon, the jurors could find that Schnopps had “a conscious and fixed purpose to kill continuing for a length of time.”
If conflicting inferences are possible, “it is for the jury to determine where the truth lies.” There was ample evidence which suggested the jurors’ conclusion that Schnopps acted with deliberately premeditated malice aforethought.
On appeal, Schnopps complains that the prosecutor’s summation, which stressed that premeditated murder requires “a thought and an act,” could have confused the jurors by suggesting that if “at any time earlier Schnopps merely thought about killing that person,” that was sufficient to constitute deliberately “premeditated malice aforethought.”
We do not read the prosecutor’s argument as suggesting that conclusion. The prosecutor focused on the Commonwealth’s evidence of deliberately premeditated malice aforethought throughout his argument. There was no error.
In any event, the argument, read as a whole, does not create a “substantial likelihood of a miscarriage of justice.” Schnopps’s domestic difficulties were fully explored before the jury. The jurors rejected Schnopps’s claim that his domestic difficulties were an adequate ground to return a verdict of a lesser degree of guilt. The degree of guilt, of course, is a jury determination. The evidence supports a conclusion that Schnopps, angered by his wife’s conduct, shot her with deliberately premeditated malice aforethought.
The jurors were in the best position to determine whether the domestic difficulties were so egregious as to require a verdict of a lesser degree of guilt. We conclude, on review of the record as a whole, that there is no reason for us to order a new trial or direct the entry of a lesser verdict.
Judgment affirmed.
Questions
1. If you were a juror, could you in good conscience say that Schnopps was adequately provoked? Explain your answer, relying on the facts in the case, the court’s opinion, and the text prior to the excerpt.
2. If so, was it the adultery that provoked him or the provocative words his wife used to describe her adulterous relationship?
3. Do you think the prohibition against provocative words makes sense?
4. If you were writing a voluntary manslaughter law, state the elements of the offense as you believe they should be.
Most men and women—gay and straight—would justifiably get angry if someone touched their genitals without their consent. According to Professor Joshua Dressler (1995), most NHA cases that find their way into the appellate courts demonstrate that “unwanted sexual advance is a basis for justifiable indignation” (754). Professor Dressler offers the following general statements about NHA cases:
1. Indignation in response to a violation of one’s sexual privacy or autonomy is justifiable.
2. Anger, one possible manifestation of such indignation, is justifiable or excusable.
3. Any resulting killing is wholly unjustifiable. (So self-defense doesn’t apply—you can’t kill in response to an unwanted, nonviolent sexual advance.)
4. But, if the invasion of privacy is significant, ordinary, fallible human beings might become so upset that their out-of-control reaction deserves mitigated punishment (754).
Although he was referring to cases involving homosexual strangers, the points in Professor Dressler’s list should apply to all acquaintance nonviolent advances—homosexual and heterosexual. In other words, “there’s a partial excuse in many sexual-advance cases.” And this “partial excuse” for the “impassioned killing” spawned by an unwanted sexual advance might reduce the killing from murder to manslaughter (754–55).
“Gay Panic”
Mike might take a different road to getting a murder prosecution reduced to voluntary manslaughter—“ gay panic .” The gay panic claim is based on “the theory that a person with latent homosexual tendencies will have an extreme and uncontrollably violent reaction when confronted with a homosexual proposition” (1542). Mike might succeed if he can prove that
· (1)
he’s a latent homosexual and
· (2)
this “condition” (sometimes labeled a psychological disorder) caused him to react violently to homosexual sexual advances (Note 1989).
Gay panic is sometimes considered one form of the excuse of diminished capacity (which we discussed in Chapter 6). Here we treat it as an adequate provocation.
In Commonwealth v. Carr (1990), our next case excerpt, Stephen Roy Carr argued that his mother’s lesbian relationship when he was a boy, along with the sexual abuse against him while he was in prison, was behind his homicidal rage set off when he saw Claudia Brenner and Rebecca Wight having sex.
The Emotion–Act Distinction
LO8
All of us can empathize with Mike’s emotions when Gary made his unwanted advances. Who wouldn’t feel indignant, violated, outraged? In other words, any reasonable person (I mean here any ordinary person) could feel similarly. But what about Mike’s acts in response to Gary’s advances? Would a reasonable person stomp Gary to death? Proponents of the emotion–act distinction make the sensible claim that we should separate the reasonableness of lethal action from the emotions that led to the killing (Lee 2003, 261). Why? Because, according to Professor Cynthia Lee (2003), there’s a “big difference between reasonable emotions (fear, anger, outrage) and reasonable action. Even if a particular emotion is reasonable under the circumstances, this does not mean that acting on that emotion by using deadly force is also reasonable” (261).
Did Seeing the Lesbian Lovemaking Cause a “Gay Panic”?
Case
In Commonwealth v. Carr, Stephen Roy Carr was convicted of first murder and was sentenced life in prison. He appealed and the Superior Court affirmed.
Commonwealth v. Carr 580 A.2d 1362 (Penn. Supp. 1990)
History
Stephen Roy Carr (Defendant) was convicted of murder in the first degree before the Court of Common Pleas of Adams County, Criminal Division, and he was sentenced to life imprisonment. He appealed. The Superior Court affirmed.
WIEAND, J.
On May 13, 1988, Claudia Brenner and Rebecca Wight were hiking along the Appalachian Trail in Adams County, when they found an appropriate campsite and stopped for the night. There, they were resting and engaging in lesbian lovemaking when Claudia Brenner was shot in the right arm. After a short pause, additional shots were fired, as a result of which Brenner was struck four additional times in and about her face, neck and head. Rebecca Wight ran for cover behind a tree and was shot in the head and back. Brenner attempted to help Wight, who was unable to walk, but was unable to rouse her. Brenner thereupon went for help, but by the time help arrived, Wight was dead. Suspicion subsequently focused on Stephen Roy Carr. He was arrested and taken into custody on a fugitive warrant from the State of Florida. He was subsequently tried without a jury and found guilty of murder in the first degree.
Opinion
Carr defended at trial on grounds that he had shot Brenner and Wight in the heat of passion caused by the serious provocation of their nude homosexual lovemaking. In support of this defense and to show the existence of passion, Carr offered to show a history of constant rejection by women, including his mother who may have been involved in a lesbian relationship, sexual abuse while in prison in Florida, inability to hold a job, and retreat to the mountains to avoid further rejection. This was relevant, he contended, to show that he was impassioned when provoked by the “show” put on by the women, including their nakedness, their hugging and kissing and their oral sex. The trial court refused to allow evidence of Carr’s psychosexual history, finding it irrelevant.
The crime of voluntary manslaughter is defined by the Pennsylvania Crimes Code as follows:
A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation. . . .
The passion which will reduce an unlawful killing to voluntary manslaughter must be caused by legally adequate provocation. The test for determining the existence of legally adequate provocation is an objective test. In making the objective determination as to what constitutes sufficient provocation reliance may be placed upon the cumulative impact of a series of related events. The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was “incapable of cool reflection.”
If and when sufficient provocation is found, then the focus of inquiry shifts to the defendant’s response to that provocation. If sufficient provocation exists, the fact finder must also determine whether the defendant actually acted in the heat of passion when he committed the homicide and thus whether the provocation led directly to the killing or whether there was sufficient “cooling” period so that a reasonable man would have regained his capacity to reflect.
A trial court must make an initial determination whether sufficient evidence has been presented of serious provocation. In the instant case, the judge was both court and jury. Carr was permitted to show the nature of the activities in which his victims were engaged when he came upon them in the woods. In a provocation defense, the actions of the victim establishing provocation are relevant. Those are the victim’s actions on the [day] in question because the provocation must lead directly to the killing.
After it had been determined that these activities were inadequate to provoke a heat of passion response, however, Carr’s rejection by women and his mother’s sexual preference were irrelevant. Carr’s history of misfortunes is not events which are in any way related to the events which he claims provoked him on May 13, 1988. An accused cannot, by recalling some past injury or insult, establish a foundation for a manslaughter verdict. The trial court did not err when it excluded evidence of appellant’s psychosexual history.
The judgment of sentence is affirmed.
Questions
1. List all of the relevant facts and circumstances that provoked Stephen Roy Carr to kill Rebecca Wight.
2. Summarize the reason why Carr claims he committed voluntary manslaughter.
3. State the court’s definition of provocation.
4. Summarize the court’s reasons for rejecting Carr’s claim.
5. In your opinion, was Carr guilty of murder or voluntary manslaughter? Back up your answer with details and arguments from the excerpt.
Just because the distinction makes sense doesn’t mean the law recognizes it. Professor Lee examined model jury instructions to determine whether states required act reasonableness , meaning “a finding that a reasonable person in the defendant’s shoes would have responded as violently as the defendant did” (262). Only two states followed this approach.
Most states adopt an emotional reasonableness approach, meaning a finding that “the defendant’s emotional outrage or passion was reasonable.” A few states require both act and emotional reasonableness (262–63). Professor Lee recommends implementation of the emotion–act distinction in voluntary manslaughter law (268; Criminal Law in Focus box, “Provocation Jury Instruction”).
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