§707-701 - Murder in the first degree.
PART II.
CRIMINAL HOMICIDE
§707-701 Murder in the first
degree. (1) A person commits the offense of murder in the first degree if
the person intentionally or knowingly causes the death of:
(a) More than one person in the same or separate
incident;
(b) A law enforcement officer, judge, or prosecutor
arising out of the performance of official duties;
(c) A person known by the defendant to be a witness
in a criminal prosecution and the killing is related to the person's status as
a witness;
(d) A person by a hired killer, in which event both
the person hired and the person responsible for hiring the killer shall be
punished under this section; or
(e) A person while the defendant was imprisoned.
(2) Murder in the first degree is a felony for
which the defendant shall be sentenced to imprisonment as provided in section
706-656. [L 1972, c 9, pt of §1; am L 1986, c 314, §49; am L 2001, c 91, §4; am
L 2006, c 230, §27]
Cross References
Acting intentionally and acting knowingly with respect to the
result of conduct, see §702-206.
COMMENTARY ON 707-701
General analysis. The aggravated nature and severe
sanctions traditionally associated with the crime of murder are hardly subjects
of debate today. The actor in such a crime has disregarded the most highly
held social values, and has proved oneself an extreme danger to society. The
Code recognizes the highly aggravated nature of this crime in imposing its most
severe sanction.
Several states, and some recent efforts at penal law
revision, recognize two degrees of murder.[1] One of the primary reasons for
this distinction is to limit the scope of first degree murder in jurisdictions
which make it a capital offense.[2] In states, like Hawaii, where the death
penalty has been abolished, the above reason for the distinction is no longer
applicable and the continuation of the distinction would be a carryover from
the older death penalty legislation.
Under previous Hawaii law, first degree murder required proof
of "deliberate premeditated malice aforethought."[3] For a
conviction of murder in the second degree, the Hawaii law required only
"malice aforethought."[4] The Code is in accord with the Model Penal
Code in making murder a unified offense which requires that the actor act
intentionally or knowingly with respect to the homicidal result.[5] If a
person has the conscious object of causing the death of another, or if the
person 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 be
committed by extreme recklessness. In recent codes which do recognize two
degrees of murder, a homicide caused with this lesser degree of mental
culpability has been made murder in the second degree.[6] The net effect is to
change manslaughter to murder when aggravated circumstances are present.
Typically, these formulations hold an individual guilty of murder in the second
degree if
[h]e recklessly
causes 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 more
appropriate to leave provisions for more severe sentences in aggravated
circumstances to those sections which are specifically designed to deal with
such cases. An actor whose indifference to human life amounts to
"practical certainty" of causing death will be held to have caused
death knowingly under the Code's formulation of murder; but where the actor's conduct
is characterized by a "cruel, wicked, and depraved indifference,"
without more, these character traits ought to be taken into account at the time
of disposition. Sections 706-661 and 706-662 provide for extended sentences in
such aggravated circumstances. An individual who would, under a statute such
as that quoted above, be convicted of second degree murder would, under the
Code's system, be convicted of manslaughter and given an extended sentence.
The resultant sentence may be the same in both cases;[8] however, where the
other formulation requires the determination of the actor's character to be
made by the finder of fact, the Code assigns this task to a psychiatrist, who
is eminently better suited to make such determinations. More specifically, the
psychiatrist must report that the actor's conduct is characterized by
"compulsive, aggressive behavior with heedless indifference to
consequences, and that such condition makes him a serious danger to
others."[9] It is easily seen that the psychiatrist is looking for
precisely those traits which the trier of fact is asked to find in the other
form of the statute. And, beyond the psychiatrist's greater expertise in
making such determinations, the abnormality presented by such character traits
falls more appropriately under special circumstances requiring prolonged
treatment, via an extended sentence, than under greater moral culpability
requiring conviction for a more serious offense.
Felony-murder rule. The felony-murder rule[10]
"has an extensive history of thoughtful condemnation."[11] The
genesis of the rule may have been due to an erroneous interpretation by Coke of
a passage from Bracton and, at least since 1834, when His Majesty's
Commissioners on Criminal Law found the rule to be "totally incongruous with
the general principles of our jurisprudence,"[12] the rule has been
condemned by writers and scholars.
The felony-murder rule has been used to support murder
convictions of defendants where one victim of a robbery accidentally shoots
another victim,[13] where one of the defendant's co-robbers kills another
co-robber during a robbery for the latter's refusal to obey orders and not as
part of the robbery transaction,[14] and where the defendant (a dope addict)
commits robbery of the defendant's homicide victim as an afterthought following
the killing.[15] The application of the felony-murder rule dispenses with the
need to prove that culpability with respect to the homicidal result that is
otherwise required to support a conviction for murder and therefore leads to
anomalous results. The rule has been called a "legal Hydra."[16]
"Like the multiheaded beast of Greek mythology, the felony-murder rule has
several 'heads' of its own, each willing to consume one of the accused's
defenses by presuming a needed element in the proof of felony murder."[17]
Because "principled argument in its the [felony-murder
rule's] defense is hard to find,"[18] the Model Penal Code,[19] certain
recent penal revisions,[20] and some recent cases[21] have limited the scope of
the rule. The attempts to preserve the rule by limiting its application have
taken a number of forms. Some recent revisions require that the death be
recklessly caused in furtherance of a felony or attempted felony,[22] others
require that the death be caused simply in furtherance of the felony and allow
the defendant an affirmative defense if the defendant can show, in effect, that
the defendant reasonably did not foresee the possibility of the killing.[23]
That the killing may result from acts done negligently or recklessly (states of
mind otherwise insufficient to establish murder) is not changed. California
has limited the application of the rule by a re-interpretation of existing
statutory language.[24] The court limited the rule in terms of persons: it
held that a killing by a victim of the attempted felony of defendant's co-felon
was not "to perpetrate" the felony and that the felony-murder rule
was not applicable to the surviving defendant. In view of the statutory
language making the rule applicable to killings in the perpetration of an
enumerated felony, the language and logic of the court are somewhat
strained.[25] However, the court's attempt to limit the rule and thereby avoid
the questionable results brought about by the rule's broad application has been
characterized as a "heightened awareness of the doctrine's underlying
illogic."[26] The Model Penal Code has taken a different approach: it has
abandoned the felony-murder rule as a rule of substantive law and has
reformulated it as a rule of evidence. Extreme recklessness, which under the
M.P.C. is sufficient to establish murder, may be presumed from the commission
of 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 is
not an indispensable ingredient in a system of criminal injustice; "[t]he
rule is unknown as such in continental Europe."[30]
Even in its limited formulation the felony-murder rule is
still objectionable. It is not sound principle to convert an accidental,
negligent, or reckless homicide into a murder simply because, without more, the
killing was in furtherance of a criminal objective of some defined class.
Engaging in certain penally-prohibited behavior may, of course, evidence a
recklessness sufficient to establish manslaughter, or a practical certainty or
intent, with respect to causing death, sufficient to establish murder, but such
a finding is an independent determination which must rest on the facts of each
case. Limited empirical data discloses that the ratio of homicides in the
course of specific felonies[31] to the total number of those felonies does not
justify a presumption of culpability with respect to the homicide result
sufficient to establish murder.[32] There appears to be no logical base for
the felony-murder rule which presumes, either conclusively or subject to
rebuttal, culpability sufficient to establish murder.[33]
Nor does the felony-murder rule serve a legitimate deterrent
function. The actor has already disregarded the presumably sufficient
penalties imposed for the underlying felony. If the murder penalty is to be
used to reinforce the deterrent effect of penalties imposed for certain
felonies (by converting an accidental, negligent, or reckless killing into a
murder), it would be more effective, and hardly more fortuitous, to select a
certain ratio of convicted felons for the murder penalty by lot.[34]
In recognition of the trend toward, and the substantial body
of criticism supporting, the abolition of the felony-murder rule, and because
of the extremely questionable results which the rule has worked in other
jurisdictions, the Code has eliminated from our law the felony-murder rule.
General effect of Code. The homicide sections of the
Code substantially simplify and clarify the law of Hawaii, although the results
reached by the court or jury in most cases will probably be similar. As
explained above, the felony-murder rule has been eliminated.
Previous Hawaii law provided that a person convicted of
murder in the first degree shall be imprisoned at hard labor for life not
subject to parole.[35] A person convicted of murder in the second degree,
under previous law, would be sentenced to "imprisonment at hard labor for
any number of years but for a term not less than twenty years."[36] Under
the Code, a convicted defendant will be sentenced to imprisonment for an
indeterminate term, the maximum length of which will be life imprisonment without
parole in four instances set forth in §706-606(a) or life or twenty years as
determined by the court.[37] The possibility of eventual parole is made
available by the general revision of sentencing in Chapter 706.
The need for clarification of the law has been implied rather
strongly by the Supreme Court of Hawaii. For instance, the court has stated
plainly, on a number of occasions, that it is reversible error, in some murder
trials, to instruct the jury in the language of the previous statutory presumption
on "malice aforethought."[38] Moreover, although the court said that
"malice aforethought" was the same as "malice,"[39] it was
not the same "malice" as that which was defined in the prior penal
code,[40] and it was apparently reversible error in any homicide prosecution to
instruct the jury in the language of the statutory definition.[41]
Furthermore, the antiquity and ambiguity of, and the difficulty in dealing
with, the requirement of "malice aforethought" is evident from a
cursory glance at court opinions.[42] This Code eliminates such problems of
interpretation, while achieving greater simplicity and consistency.
SUPPLEMENTAL COMMENTARY ON §707-701
The Legislature, in adopting the Code in 1972, added the
provision for mandatory life imprisonment without parole (but subject to
commutation) as contained in §706-606(a). The Legislature stated that these
instances "are so threatening to the security of our society that the
severest deterrent penalty should be required." Conference Committee Report
No. 2 (1972). The reader is referred to the discussion in the Supplemental
Commentary on §706-606.
Act 230, Session Laws 2006, amended subsection (1) to clarify
that the killing of a person known by the defendant to be a witness in a
criminal prosecution is murder in the first degree [if the killing is related
to 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 is
subject to imprisonment for 20 years. 57 H. 418, 558 P.2d 1012.
In murder prosecutions where instructions on self-defense are
given, the court shall instruct on manslaughter, subject to one exception. 58
H. 492, 573 P.2d 959.
Indictment for murder properly included allegation that
defendant 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 not
raise the question whether offense was murder or manslaughter. 61 H. 193, 600
P.2d 1139.
Reckless endangering in the second degree is a lesser
included 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 on
mitigating defense. 70 H. 509, 778 P.2d 704.
Where petitioner’s convictions on counts I (attempted first
degree murder), II (second degree murder), and III (attempted second degree
murder) violated §701-109(1)(c)’s clear prohibition against inconsistent
factual findings, the failure to raise this issue, both at trial and on appeal,
resulted in withdrawal of not only a potentially meritorious defense, but a
defense 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 tracked
statutory language of subsection (1)(b) by requiring proof beyond reasonable doubt
that police officer's death arose out of performance of officer's official
duties, the deficiency in instruction did not affect defendant's substantial
rights. 75 H. 282, 859 P.2d 1369.
Court's instruction that, in order to convict defendant of
attempted first degree murder, the jury must find "conduct intended or
known to cause the death of [two individuals] in the same incident" did
not omit a material element of the offense and was not otherwise defective. 86
H. 1, 946 P.2d 955.
Section 707-702(2) precludes multiple manslaughter
convictions based on a single count charging first degree murder under
subsection (1)(a). 99 H. 542, 57 P.3d 467.
Where negativing of defendant's mitigating extreme mental or
emotional distress defense by prosecution was a material element of the offense
of first degree murder such that jury unanimity was a prerequisite to returning
any verdict, and trial court's special instruction expressly directed the jury
to convict defendant of manslaughter if a single juror believed that the
prosecution had failed to negative the mitigating defense, constitutional right
to unanimous jury verdict violated. 99 H. 542, 57 P.3d 467.
With the January 1, 1987 repeal of the language in this
section (pre-1986 amendment), murder is no longer classified as a class A
felony. 102 H. 282, 75 P.3d 1173.
One cannot be convicted of both attempted murder and of
violation of §291C-12, failure to render assistance. 1 H. App. 625, 623 P.2d
1271.
Murder is not lesser included offense of murder for hire. 3
H. App. 107, 643 P.2d 807.
Crime of attempted manslaughter is an included offense of
attempted 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. These
codes, however, also provide that murder can be committed by extreme
recklessness.
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's
own 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 a
certain 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 the
attempt--notwithstanding the fact that the killing was not intentional or the
fact that the defendant did not have the mental culpability, i.e., the state of
mind, otherwise required for a conviction of murder (or of murder in the first
degree). See H.R.S. §748-1: "Murder in the first degree is the killing
of any human being without authority, justification or extenuation by law
done... (3) In the commission of or attempt to commit or the flight from the
commission of or attempt to commit arson, rape, robbery, burglary or
kidnapping."
11. Note, Criminal Law: Felony-Murder Rule -Felon's
Responsibility For Death of Accomplice, 65 Colum. L. Rev. 1496 (1955).
12. See id. at 1496, citing, with respect to the genesis of
the rule, 65 L.T. (London) 292 (1878), and, with respect to His Majesty's
Commissioners, First Report of His Majesty's Commissioners on Criminal Law 29
(1834). The note also points out Sir James Stephens found the rule "a
monstrous 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 second
degree); 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-murder
requires that the felon or his accomplice commit the killing, for if he does
not, 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 the
dissenting opinion was quick to note: "Section 189 carries not the least
suggestion of a requirement that the killing must take place to perpetrate the
felony. If that requirement now be read into the section by the majority, then
what becomes of the rule--which they purport to recognize that an accidental
and unintentional killing falls within the section? How can it be said that
such 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 (Ranchhoddas
1951).
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 of
the specified felonies would be even fewer in number.
32. For the statistics of one study, see M.P.C., Tentative
Draft 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 do
better 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, and
concurring 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.