Applying the Analysis

Applying the Analysis

The earlier sections of this chapter each supplied one piece of an intentional-killing problem: malice, the weapon inference, the meaning of premeditation and deliberation, the evidence that proves them, and the Model Penal Code's alternative. An exam fact pattern delivers all of those pieces at once, and the order in which you take them up decides whether the answer comes out clean. The order matters because each step presupposes the one before it. A degree cannot be assigned until the killing is shown to be intentional, and a court cannot ask whether an intent was reached through reflection until it has found an intent to reflect upon. Running the steps in sequence also blocks two recurring mistakes, treating an intent to kill as premeditation and treating a sympathetic motive as though it erased the intent. A defendant who intended death but did not reflect remains guilty of second degree murder, so intent alone never carries a case to the top degree.¹

Two of these steps carry the reasoning, and the others carry the facts. Step 2 demands affirmative evidence because the evidence that proves intent, typically the deadly weapon, would otherwise prove reflection as well. Every intentional killing would then be first degree, and the statutory line between the degrees would disappear.⁷ Step 3 supplies the substitute, since no one can see a state of mind and the prosecution must prove it from conduct. If step 1 fails, the premeditation inquiry never begins, and a killing without intent to kill must be tested under other theories, such as felony murder, which replaces the intent to kill with the intent to commit the underlying felony.⁸

Step 3 is where most exam problems are won or lost, so its three categories deserve to be held in mind together. Planning evidence covers what the defendant did beforehand toward the killing, such as possessing the weapon in advance, approaching the victim by stealth, or taking the victim somewhere others are unlikely to intrude. Motive evidence covers prior threats, plans that the victim's death would advance, and earlier conduct of the victim known to have angered the defendant. Manner evidence covers wounds placed at vital areas so exactly that the killing looks designed. Great violence, many wounds, and efforts to escape detection afterward prove little, because a frenzied killing is at least as likely to be impulsive and later concealment shows only the defendant's later state of mind.⁹

The Forrest decision shows every step resolving toward first degree. The defendant shot his critically ill father four times in the head while the father lay helpless in a hospital bed, using a single-action revolver that had to be cocked before each shot.¹⁰ Step 1 is met by the point-blank use of a firearm. At step 3 the planning evidence is the revolver itself: the defendant was not working that day, yet carried the gun to the hospital anyway, and each of the four shots required a separate cocking. The father had done nothing to provoke the attack, which removes any suggestion of a sudden quarrel, and the court held that substantial evidence supported submitting premeditation and deliberation to the jury.¹¹ The court treated the defendant's own statements as the most persuasive evidence of all, since he had said that he had thought about putting his father out of his misery and had promised not to let him suffer.¹² Step 4 therefore yields first degree murder, and the merciful motive does not alter that grade, because the statements that revealed the mercy are the same statements that proved the reflection.¹³

The tire-iron facts and the Forrest facts share step 1 and part ways at step 2. Both defendants intended death and used a deadly weapon, so malice is present in each. What differs is the affirmative evidence of reflection: the Forrest defendant carried the weapon to the hospital, fired through separate deliberate acts, and spoke of his purpose, while the parking-lot defendant seized a weapon that happened to be at hand and struck in a flurry. The prosecution's two best facts, the number of blows and the disposal of the iron, fall in the category that proves little. A student who stops after step 1 and labels both killings first degree has treated intent as premeditation, and a student who reduces Forrest because of the mercy motive has treated motive as negating intent. Midgett, the decision read alongside Forrest, shows the separation from the other direction, since the commentary on it stresses that a man who beat his little boy acted diabolically yet without scheme or plot.¹⁴

Some fact patterns sit between these poles, and the Geraldo example is one. Geraldo purposely pushed a boy into the path of a car that he clearly saw coming, so malice is established at step 1 and at least second degree murder follows at common law, leaving premeditation as the open question.¹⁵ Many courts allow a jury to find premeditation in an instant. In People v. Waters a youth fired once into a car and, within five seconds and with both hands on the pistol, fired again and killed the victim, and the finding of premeditation was upheld.¹⁶ A jury that could find premeditation need not do so, and time alone may not suffice: in State v. Bingham the defendant spent five minutes strangling the victim, and a divided court held that without other evidence time alone would not support the finding.¹⁷ The better and growing view is that reflection taking no appreciable time destroys the statutory distinction between the degrees, although premeditation can still exist when the killing follows immediately after the intent is formed, if that intent was the conclusion of earlier thought.¹⁸ On an exam, Geraldo-type facts therefore call for an answer that states what a jury could infer and what planning, motive, or manner evidence is missing.

Step 5 gives the same answer for every one of these defendants. The Forrest defendant acted purposely, so the homicide is murder under the Code, and because the Code is silent on reflection, the planning that made him a first degree murderer adds nothing to the classification.¹⁹ The parking-lot defendant, whose use of the tire iron supports a finding that death was the conscious object, is equally a murderer, even though a degree statute would keep that defendant out of first degree.²⁰ Geraldo acted purposely as well, so the dispute over finding premeditation in an instant never arises. What separates these defendants under the Code is sentencing, where listed mitigating and aggravating factors replace the degree label.²¹ The one exit from murder at this step is the extreme mental or emotional disturbance provision, which should be checked whenever the facts describe a defendant overwhelmed by a disturbance with a reasonable explanation.²²