PART II. CRIMINAL HOMICIDE

 

§707-701  Murder in the firstdegree.  (1)  A person commits the offense of murder in the first degree ifthe person intentionally or knowingly causes the death of:

(a) More than one person in the same or separateincident;

(b) A law enforcement officer, judge, or prosecutorarising out of the performance of official duties;

(c) A person known by the defendant to be a witnessin a criminal prosecution and the killing is related to the person's status asa witness;

(d) A person by a hired killer, in which event boththe person hired and the person responsible for hiring the killer shall bepunished under this section; or

(e) A person while the defendant was imprisoned.

(2)  Murder in the first degree is a felony forwhich the defendant shall be sentenced to imprisonment as provided in section706-656. [L 1972, c 9, pt of §1; am L 1986, c 314, §49; am L 2001, c 91, §4; amL 2006, c 230, §27]

 

Cross References

 

  Acting intentionally and acting knowingly with respect to theresult of conduct, see §702-206.

 

COMMENTARY ON 707-701

 

  General analysis.  The aggravated nature and severesanctions traditionally associated with the crime of murder are hardly subjectsof debate today.  The actor in such a crime has disregarded the most highlyheld social values, and has proved oneself an extreme danger to society.  TheCode recognizes the highly aggravated nature of this crime in imposing its mostsevere sanction.

  Several states, and some recent efforts at penal lawrevision, recognize two degrees of murder.[1]  One of the primary reasons forthis distinction is to limit the scope of first degree murder in jurisdictionswhich make it a capital offense.[2]  In states, like Hawaii, where the deathpenalty has been abolished, the above reason for the distinction is no longerapplicable and the continuation of the distinction would be a carryover fromthe older death penalty legislation.

  Under previous Hawaii law, first degree murder required proofof "deliberate premeditated malice aforethought."[3]  For aconviction of murder in the second degree, the Hawaii law required only"malice aforethought."[4]  The Code is in accord with the Model PenalCode in making murder a unified offense which requires that the actor actintentionally or knowingly with respect to the homicidal result.[5]  If aperson has the conscious object of causing the death of another, or if theperson is "practically certain" that the person will cause the death,the person has the requisite culpability for conviction.

  Murder has usually been defined to provide that it can becommitted by extreme recklessness.  In recent codes which do recognize twodegrees of murder, a homicide caused with this lesser degree of mentalculpability has been made murder in the second degree.[6]  The net effect is tochange manslaughter to murder when aggravated circumstances are present. Typically, these formulations hold an individual guilty of murder in the seconddegree if

[h]e recklesslycauses the death of another person under circumstances which manifest a cruel,wicked, and depraved indifference to human life.[7]

  Analytically, however, it is both simpler and moreappropriate to leave provisions for more severe sentences in aggravatedcircumstances to those sections which are specifically designed to deal withsuch cases.  An actor whose indifference to human life amounts to"practical certainty" of causing death will be held to have causeddeath knowingly under the Code's formulation of murder; but where the actor's conductis characterized by a "cruel, wicked, and depraved indifference,"without more, these character traits ought to be taken into account at the timeof disposition.  Sections 706-661 and 706-662 provide for extended sentences insuch aggravated circumstances.  An individual who would, under a statute suchas that quoted above, be convicted of second degree murder would, under theCode's system, be convicted of manslaughter and given an extended sentence. The resultant sentence may be the same in both cases;[8] however, where theother formulation requires the determination of the actor's character to bemade by the finder of fact, the Code assigns this task to a psychiatrist, whois eminently better suited to make such determinations.  More specifically, thepsychiatrist must report that the actor's conduct is characterized by"compulsive, aggressive behavior with heedless indifference toconsequences, and that such condition makes him a serious danger toothers."[9]  It is easily seen that the psychiatrist is looking forprecisely those traits which the trier of fact is asked to find in the otherform of the statute.  And, beyond the psychiatrist's greater expertise inmaking such determinations, the abnormality presented by such character traitsfalls more appropriately under special circumstances requiring prolongedtreatment, via an extended sentence, than under greater moral culpabilityrequiring conviction for a more serious offense.

  Felony-murder rule.  The felony-murder rule[10]"has an extensive history of thoughtful condemnation."[11]  Thegenesis of the rule may have been due to an erroneous interpretation by Coke ofa passage from Bracton and, at least since 1834, when His Majesty'sCommissioners on Criminal Law found the rule to be "totally incongruous withthe general principles of our jurisprudence,"[12] the rule has beencondemned by writers and scholars.

  The felony-murder rule has been used to support murderconvictions of defendants where one victim of a robbery accidentally shootsanother victim,[13] where one of the defendant's co-robbers kills anotherco-robber during a robbery for the latter's refusal to obey orders and not aspart of the robbery transaction,[14] and where the defendant (a dope addict)commits robbery of the defendant's homicide victim as an afterthought followingthe killing.[15]  The application of the felony-murder rule dispenses with theneed to prove that culpability with respect to the homicidal result that isotherwise required to support a conviction for murder and therefore leads toanomalous results.  The rule has been called a "legal Hydra."[16] "Like the multiheaded beast of Greek mythology, the felony-murder rule hasseveral 'heads' of its own, each willing to consume one of the accused'sdefenses by presuming a needed element in the proof of felony murder."[17]

  Because "principled argument in its the [felony-murderrule's] defense is hard to find,"[18] the Model Penal Code,[19] certainrecent penal revisions,[20] and some recent cases[21] have limited the scope ofthe rule.  The attempts to preserve the rule by limiting its application havetaken a number of forms.  Some recent revisions require that the death berecklessly caused in furtherance of a felony or attempted felony,[22] othersrequire that the death be caused simply in furtherance of the felony and allowthe defendant an affirmative defense if the defendant can show, in effect, thatthe defendant reasonably did not foresee the possibility of the killing.[23] That the killing may result from acts done negligently or recklessly (states ofmind otherwise insufficient to establish murder) is not changed.  Californiahas limited the application of the rule by a re-interpretation of existingstatutory language.[24]  The court limited the rule in terms of persons:  itheld that a killing by a victim of the attempted felony of defendant's co-felonwas not "to perpetrate" the felony and that the felony-murder rulewas not applicable to the surviving defendant.  In view of the statutorylanguage making the rule applicable to killings in the perpetration of anenumerated felony, the language and logic of the court are somewhatstrained.[25]  However, the court's attempt to limit the rule and thereby avoidthe questionable results brought about by the rule's broad application has beencharacterized as a "heightened awareness of the doctrine's underlyingillogic."[26]  The Model Penal Code has taken a different approach: it hasabandoned the felony-murder rule as a rule of substantive law and hasreformulated it as a rule of evidence.  Extreme recklessness, which under theM.P.C. is sufficient to establish murder, may be presumed from the commissionof certain enumerated felonies.[27]

  The wiser course, it seems, would be to follow the lead of England[28] and India[29] and abolish the felony-murder rule in its entirety.  The rule certainly isnot an indispensable ingredient in a system of criminal injustice; "[t]herule is unknown as such in continental Europe."[30]

  Even in its limited formulation the felony-murder rule isstill objectionable.  It is not sound principle to convert an accidental,negligent, or reckless homicide into a murder simply because, without more, thekilling was in furtherance of a criminal objective of some defined class. Engaging in certain penally-prohibited behavior may, of course, evidence arecklessness sufficient to establish manslaughter, or a practical certainty orintent, with respect to causing death, sufficient to establish murder, but sucha finding is an independent determination which must rest on the facts of eachcase.  Limited empirical data discloses that the ratio of homicides in thecourse of specific felonies[31] to the total number of those felonies does notjustify a presumption of culpability with respect to the homicide resultsufficient to establish murder.[32]  There appears to be no logical base forthe felony-murder rule which presumes, either conclusively or subject torebuttal, culpability sufficient to establish murder.[33]

  Nor does the felony-murder rule serve a legitimate deterrentfunction.  The actor has already disregarded the presumably sufficientpenalties imposed for the underlying felony.  If the murder penalty is to beused to reinforce the deterrent effect of penalties imposed for certainfelonies (by converting an accidental, negligent, or reckless killing into amurder), it would be more effective, and hardly more fortuitous, to select acertain ratio of convicted felons for the murder penalty by lot.[34]

  In recognition of the trend toward, and the substantial bodyof criticism supporting, the abolition of the felony-murder rule, and becauseof the extremely questionable results which the rule has worked in otherjurisdictions, the Code has eliminated from our law the felony-murder rule.

  General effect of Code.  The homicide sections of theCode substantially simplify and clarify the law of Hawaii, although the resultsreached by the court or jury in most cases will probably be similar.  Asexplained above, the felony-murder rule has been eliminated.

  Previous Hawaii law provided that a person convicted ofmurder in the first degree shall be imprisoned at hard labor for life notsubject to parole.[35]  A person convicted of murder in the second degree,under previous law, would be sentenced to "imprisonment at hard labor forany number of years but for a term not less than twenty years."[36]  Underthe Code, a convicted defendant will be sentenced to imprisonment for anindeterminate term, the maximum length of which will be life imprisonment withoutparole in four instances set forth in §706-606(a) or life or twenty years asdetermined by the court.[37]  The possibility of eventual parole is madeavailable by the general revision of sentencing in Chapter 706.

  The need for clarification of the law has been implied ratherstrongly by the Supreme Court of Hawaii.  For instance, the court has statedplainly, on a number of occasions, that it is reversible error, in some murdertrials, to instruct the jury in the language of the previous statutory presumptionon "malice aforethought."[38]  Moreover, although the court said that"malice aforethought" was the same as "malice,"[39] it wasnot the same "malice" as that which was defined in the prior penalcode,[40] and it was apparently reversible error in any homicide prosecution toinstruct the jury in the language of the statutory definition.[41] Furthermore, the antiquity and ambiguity of, and the difficulty in dealingwith, the requirement of "malice aforethought" is evident from acursory glance at court opinions.[42]  This Code eliminates such problems ofinterpretation, while achieving greater simplicity and consistency.

 

SUPPLEMENTAL COMMENTARY ON §707-701

 

  The Legislature, in adopting the Code in 1972, added theprovision for mandatory life imprisonment without parole (but subject tocommutation) as contained in §706-606(a).  The Legislature stated that theseinstances "are so threatening to the security of our society that theseverest deterrent penalty should be required."  Conference Committee ReportNo. 2 (1972).  The reader is referred to the discussion in the SupplementalCommentary on §706-606.

  Act 230, Session Laws 2006, amended subsection (1) to clarifythat the killing of a person known by the defendant to be a witness in acriminal prosecution is murder in the first degree [if the killing is relatedto the person's status as a witness].  House Standing Committee Report No.665-06.

 

Case Notes

 

  See also notes to §706-606.

  Attempted murder is treated as ordinary class A felony and issubject to imprisonment for 20 years.  57 H. 418, 558 P.2d 1012.

  In murder prosecutions where instructions on self-defense aregiven, the court shall instruct on manslaughter, subject to one exception.  58H. 492, 573 P.2d 959.

  Indictment for murder properly included allegation thatdefendant knew the victim was a witness in a prior murder prosecution.  59 H.625, 586 P.2d 250.

  In prosecution for murder, evidence of mental disease did notraise the question whether offense was murder or manslaughter.  61 H. 193, 600P.2d 1139.

  Reckless endangering in the second degree is a lesserincluded offense of attempted murder.  62 H. 637, 618 P.2d 306.

  Sufficiency of evidence on motion for acquittal.  63 H. 51,621 P.2d 343.

  Trial court erred by not including jury instructions onmitigating defense.  70 H. 509, 778 P.2d 704.

  Where petitioner’s convictions on counts I (attempted firstdegree murder), II (second degree murder), and III (attempted second degreemurder) violated §701-109(1)(c)’s clear prohibition against inconsistentfactual findings, the failure to raise this issue, both at trial and on appeal,resulted in withdrawal of not only a potentially meritorious defense, but adefense that would have altered the outcome.  74 H. 442, 848 P.2d 966.

  State of mind required to establish attendant circumstance of"arising out of the performance of official duties" is"intentionally or knowingly"; although instruction merely trackedstatutory language of subsection (1)(b) by requiring proof beyond reasonable doubtthat police officer's death arose out of performance of officer's officialduties, the deficiency in instruction did not affect defendant's substantialrights.  75 H. 282, 859 P.2d 1369.

  Court's instruction that, in order to convict defendant ofattempted first degree murder, the jury must find "conduct intended orknown to cause the death of [two individuals] in the same incident" didnot omit a material element of the offense and was not otherwise defective.  86H. 1, 946 P.2d 955.

  Section 707-702(2) precludes multiple manslaughterconvictions based on a single count charging first degree murder undersubsection (1)(a).  99 H. 542, 57 P.3d 467.

  Where negativing of defendant's mitigating extreme mental oremotional distress defense by prosecution was a material element of the offenseof first degree murder such that jury unanimity was a prerequisite to returningany verdict, and trial court's special instruction expressly directed the juryto convict defendant of manslaughter if a single juror believed that theprosecution had failed to negative the mitigating defense, constitutional rightto unanimous jury verdict violated.  99 H. 542, 57 P.3d 467.

  With the January 1, 1987 repeal of the language in thissection (pre-1986 amendment), murder is no longer classified as a class Afelony.  102 H. 282, 75 P.3d 1173.

  One cannot be convicted of both attempted murder and ofviolation of §291C-12, failure to render assistance.  1 H. App. 625, 623 P.2d1271.

  Murder is not lesser included offense of murder for hire.  3H. App. 107, 643 P.2d 807.

  Crime of attempted manslaughter is an included offense ofattempted murder.  7 H. App. 291, 757 P.2d 1175.

  Mentioned:  74 H. 141, 838 P.2d 1374.

 

__________

§707-701 Commentary:

 

1.  E.g., H.R.S. §748-1; Prop. Del. Cr. Code §§412, 413; Prop.Mich. Rev. Cr. Code §§2005, 2006.

 

2.  See Comment, 65 Colum. L. Rev. 1496 (1965).

 

3.  H.R.S. §748-1; see also note 12, infra.

 

4.  H.R.S. §748-2.

 

5.  M.P.C. §210.2; see also Prop. Pa. Cr. Code §903.  Thesecodes, however, also provide that murder can be committed by extremerecklessness.

 

6.  Prop. Del. Cr. Code §412; Prop. Mich. Rev. Cr. Code §2006.

 

7.  Prop. Del. Cr. Code §412(1).

 

8.  See Prop. Mich. Rev. Cr. Code §2006.

 

9.  §706-662(3).

 

10.  This rule holds that a person who, either by the person'sown conduct or the conduct of another for whom the person is responsible,commits or attempts to commit a felony (or, in some codifications, one of acertain class of felonies) is liable for murder (sometimes in the first degree)if a killing occurs during or in the perpetration of the felony or theattempt--notwithstanding the fact that the killing was not intentional or thefact that the defendant did not have the mental culpability, i.e., the state ofmind, otherwise required for a conviction of murder (or of murder in the firstdegree).  See H.R.S. §748-1:  "Murder in the first degree is the killingof any human being without authority, justification or extenuation by lawdone... (3) In the commission of or attempt to commit or the flight from thecommission of or attempt to commit arson, rape, robbery, burglary orkidnapping."

 

11.  Note, Criminal Law:  Felony-Murder Rule -Felon'sResponsibility For Death of Accomplice, 65 Colum. L. Rev. 1496 (1955).

 

12.  See id. at 1496, citing, with respect to the genesis ofthe rule, 65 L.T. (London) 292 (1878), and, with respect to His Majesty'sCommissioners, First Report of His Majesty's Commissioners on Criminal Law 29(1834).  The note also points out Sir James Stephens found the rule "amonstrous doctrine" [3 Stephens, History of the Criminal Law of England 75(1883)].

 

13.  People v. Harrison, 203 Cal. 587, 265 P. 230 (1928).

 

14.  People v. Cabaltero, 31 Cal. App. 2d 52, 87 P.2d 364(1939).

 

15.  People v. Arnold, 108 Cal. App. 2d 719, 239 P.2d 449(1952).

 

16.  Note, California Rewrites Felony Murder Rule, 18 Stan. L.Rev. 690 (1966).

 

17.  Id. at 690 note 1.

 

18.  M.P.C., Tentative Draft No. 9, comments at 37 (1959).

 

19.  M.P.C. §210.2(1)(b).

 

20.  E.g., Prop. Del. Cr. Code §412(2) (murder in the seconddegree); Wisconsin Statutes Annotated §940.03 (West 1958); Prop. Mich. Rev. Cr.Code §2005(1)(b); N.Y.R.P.L. §125.25(3).

 

21.  E.g., People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442, 402 P.2d 130 (1965).

 

22.  See, e.g., Prop. Del. Cr. Code §412(2).

 

23.  See, e.g., Prop. Mich. Rev. Cr. Code §2005(1)(b);N.Y.R.P.L. §125.25(3).

 

24.  People v. Washington, supra.

 

25.  "California Penal Code Section 189 on felony-murderrequires that the felon or his accomplice commit the killing, for if he doesnot, the killing is not committed to perpetrate the felony."  People v. Washington, supra at 780, 44 Cal. Rptr. at 445, 402 P.2d at 133.  (Emphasis added.)  As thedissenting opinion was quick to note:  "Section 189 carries not the leastsuggestion of a requirement that the killing must take place to perpetrate thefelony.  If that requirement now be read into the section by the majority, thenwhat becomes of the rule--which they purport to recognize that an accidentaland unintentional killing falls within the section?  How can it be said thatsuch a killing takes place to perpetrate a robbery."  Id. at 787, 44 Cal. Rptr. at 449, 402 P.2d at 137 (dissenting opinion).  (Emphasis by Burke, J.)

 

26.  65 Colum. L. Rev. at 1500, see note 13, supra.

 

27.  See note 19, supra.

 

28.  English Homicide Act. 1 (1957), 5 and 6 Eliz. 2, c.11.

 

29.  Indian Penal Code §§299, 300 and comments (Ranchhoddas1951).

 

30.  M.P.C., Tentative Draft No. 9, comments at 36 (1959);which also discusses the Codes cited in the previous two footnotes.

 

31.  It should be remembered that homicides in furtherance ofthe specified felonies would be even fewer in number.

 

32.  For the statistics of one study, see M.P.C., TentativeDraft No. 9, comments at 38-39 (1959).

 

33.  Compare M.P.C. §210.2 with Prop. Del. Code §412(2).

 

34.  Holmes, The Common Law 58 (1881) ("the law would dobetter to hang one thief out of every thousand by lot").

 

35.  H.R.S. §748-4.

 

36.  Id.

 

37.  §§706-606 and 707-701(2).

 

38.  See H.R.S. §748-3, Territory v. Cutad, 37 Haw. 182, 188(1945), and State v. Foster, 44 Haw. 403, 429, 354 P.2d 960, 974, andconcurring opinion at 434-440, 354 P.2d at 974-980 (1960).

 

39.  State v. Moeller, 50 Haw. 110, 118, 433 P.2d 136, 142(1967).

 

40.  See id. at 119, 433 P.2d at 142.

 

41.  Id.

 

42.  Id.