Instructing the jury in murder cases
Instructing the jury in murder cases
By David L. Raybin
As a result of several court opinions there has been a significant change in the law regarding jury instructions in murder cases. In State v. Farner, 66 S.W.3d 188 (Tenn. 2001) the court held that causation must be instructed in all homicide cases. More recently, in State v. Page, 2002 WL560961 (Tenn. Crim. App., April 16, 2002), the Court of Criminal Appeals addressed the appropriate manner of instructing the jury on the mental elements of homicide.
In Page, the judge charged the jury that a defendant might be guilty of murder if he or she acted “knowingly,” which was defined as a person “acting with an awareness (1) that his conduct is of a particular nature; or (2) that a particular circumstance exists; or (3) that the conduct was reasonably certain to cause the result.” The judge also charged the jury that a person acts “intentionally” when the person acts “with a conscious objective or desire either: (1) to cause a particular result; or (2) to engage in particular conduct.”
In Page the defendant contended that the judge should not have charged the jury on the “nature of conduct” or “engaging in conduct” definitions but should have confined his instructions to only those concerned with the “result of the conduct.” The state defended on the proposition that the statutes defining these mental elements include all of these definitions and that the pattern jury instructions have called for these type of instructions since 1989.
Tenn. Code Ann. §39-11-302 defines the four mental states: intentional, knowledge, reckless and criminal negligence. Implicit in these terms is the concept that the definition of each mental state is different depending on whether one is modifying the “nature of conduct,” the “result of conduct” or the “circumstances surrounding the conduct” elements. The Model Penal Code, from which the Tennessee Criminal Code was derived, recognized that “the material elements of offenses vary in that they may involve (1) the nature of the forbidden conduct, or (2) the attendant circumstances, or (3) the result of the conduct.” Model Penal Code Draft No. 4, Comments §202.02 (1955).
The various element types appear throughout the four mental state definitions. However, not all of the mental state definitions contain all of the element types. Just as the various element types do not always appear in each definition of the four mental states, neither do all element types appear in all criminal statutes. Some crimes have only “nature of conduct” elements such as “knowingly” selling drugs. Other crimes have additional “circumstances surrounding the conduct” elements that are collateral to the defendant’s conduct. For example, selling alcohol to a minor requires that the government prove that the defendant knew or was reckless about whether the recipient was a minor. This age factor is described as a “circumstance surrounding a conduct,” which frequently has a separate mental element. Lastly, crimes may have “result elements,” which describe the offense in terms of its consequences to someone or something. Assaultive crimes are an example of “result of conduct” offenses, homicide being the classic case.
Tennessee case law already recognized that the different elements or components of statutes may have different mental states. What was less well-understood was that the various mental elements are themselves descriptive of different elements that differ depending on the type of element one is modifying. Thus, one does not “lump” all of his definitions together. Where an offense is only a “result of conduct” crime, such as homicide, for example, then only the “result of conduct” mens rea definition is necessary for an analysis of whether the accused has violated a statute.
In the context of homicide it can be seen that homicide can only be a “result” offense. The homicide statute does not proscribe the means by which the homicide is committed. To illustrate: firing a weapon is the “nature of conduct.” However, the murder statute does not “care” as to how the homicide is committed, but rather focuses on the death of another human being, which is the “result.” A person can intentionally fire a weapon but only be careless about where the bullet lands and thus be guilty of, at most, negligent homicide rather than premeditated murder. Stated in another fashion, it is not the means by which the assailant slays his victim that makes the crime murder. Rather, it is the killing itself – the result that is criminal.
In State v. Ducker, 27 S.W.3d 889 (Tenn. 2000) and State v. Ely, 48 S.W.3d 710 (Tenn. 2001) the Supreme Court held that murder was only a result-of-conduct offense. Page brought the analysis to its logical conclusion, finding that, since murder is a crime defined only by its result, it was erroneous to instruct on the additional element definitions that are not present in the offense. Page not only clarified the law as to what was inappropriate in the jury charge, Page also contained sample jury instructions for murder cases.
The only question left open by the Page decision is whether it will be applied retroactively. It is suggested that since the law has remained the same since 1989, all cases tried since that date might be subject to review depending on whether the mental state was a contested issue or not and whether the instruction was harmless error.
David L. Raybin is a partner with Raybin & Weissman, P.C. in Nashville where he concentrates in criminal trials and appeals. Raybin is the author of Tennessee Criminal Practice and Procedure (West 1984). He is also a member of the Tennessee Supreme Court Advisory Commission on Rules of Procedure. He was counsel on appeal for Mr. Page.