Murder

The clinical definition for murder is “a crime committed where a person of sound mind and discretion…kills any human…without any warrant, justification , or excuse in law with malice aforethought , express or implied, that is, with a deliberate purpose or a design or determination distinctly formed in the mind before the commission of the act, provided that death results from the injury inflicted. (Black’s Online Law Dictionary).

 

The aforementioned definition provides nothing to effectively analyze a murder charge under Michigan Law. In the State of Michigan there are principally two types of murder: (1) First Degree; and (2) Second Degree. In addition to these two types of murder, the State of Michigan has adopted the “felony-murder” rule, which is a legal mechanism that raises the death of a person to a First Degree Murder in certain circumstances.

 

This article will dissect the elements and differences between First and Second Degree Murder. Also, this article will explain the operative mechanics of the felony-murder rule.

First Degree Murder

A person who commits any of the following is guilty of First Degree Murder and shall be punished by imprisonment for life without eligibility for parole: murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.

 

The critical element to First Degree Murder is that the accused had an actual intent to kill. People v. Dykhouse, 418 Mich. 488, 494; 345 N.W.2d 150 (1984). Evidence of an actual intent to kill is usually accomplished through showing premeditation. For example, if a defendant planned a murder, then he or she had the requisite intent to kill to be guilty of First Degree Murder under MCLS § 750.316(1)(a).

 

The critical issue with First Degree Murder is that if a person is convicted, then he or she will receive a sentence that makes him or her ineligible for parole. A person convicted of First Degree Murder will die in prison.

Second Degree Murder

Second Degree Murder represents all other kinds of murder and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same. MCLS § 750.317. Generally, second degree murder will involve the same proofs as first degree murder except there is no showing of premeditation or one of the crimes listed in MCLS § 750.316. People v. Carter, 395 Mich. 434, 435; 236 N.W.2d 500 (1975).

 

Most importantly, the difference between First and Second Degree Murders is that a person convicted of second degree murder can be sentenced to a term of years and therefore may be paroled upon completion of his or her mandatory minimum sentence.

Felony-Murder Rule:

A particularly difficult situation for defendants accused of first degree murder occurs when the “felony-murder” rule is implicated. The felony-murder raises certain enumerated felonies to First Degree Murder whenever a person dies during their commission. MCLS § 750.316(b) states that a murder committed in the perpetration of, or attempt to perpetrate, “arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree under section 145n, torture under section 85, aggravated stalking under section 411i, or unlawful imprisonment under section 349b”, will be by operation of law First Degree Murder.

 

Likewise, MCLS § 750.316(c) states a murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer, shall make the defendant guilty of First Degree Murder.

 

The significance of the felony-murder rules is two-fold: (1) it makes criminal prosecution for First Degree Murder considerably easier for the prosecution who only must show the elements of the listed felony along with the death of a person during the commission, or attempted commission, of said crime; and (2) a resulting conviction under the felony-murder rule requires a defendant to be sentenced to life without the possibility of parole.

Possible Defenses

Voltaire once said: “It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.” Voltaire was referring to the double-standard that allows governments to kill in large numbers while an individual who kills must be punished.

 

We are not suggesting that killers should not be punished. Rather, Arnold E. Reed & Associates, P.C., believes American Jurisprudence exists to give every man his day in court. This can only be accomplished with a competent attorney who recognizes the number of possible defenses to the charge of murder. The possible defenses to murder varies based on the facts of the incident, but below are a few of the most common.

Identification

The most common defense to a murder is “identification”. Often identification—or more appropriately the lack of identification—is what prevents the government from proving a defendant committed a murder. Attacking identification is a common defense strategy because it is generally impossible to argue that a person was not killed when you have a dead body to prove otherwise. So, the natural legal argument becomes “the defendant did not kill” the person who is dead.

 

There are several types of evidence that support a defense of lack of identification. The best type of evidence is physical—such as blood or other body fluids. If the crime scene and/or victim’s body contains blood or other body fluids, then the presence of DNA evidence may go a long way towards convicting, or acquitting, a particular accused. Another example of incriminating or exculpating physical evidence are things like fingerprints, firearms and firearm testing, and any other tangible items in a particular case.

 

The least reliable type of identifying evidence comes from eye-witness testimony. The unreliability of eye-witness testimony has been documented throughout the years. In the context of a murder, eye-witness testimony is the least reliable and most easily manipulated by prosecuting attorneys.

Avoiding the Felony-Murder Rule:

Any defense of a felony-murder case requires defense counsel to focus on the plain language of the statute. Specifically, First Degree felony-murder is statutorily defined as murder that is “committed in the perpetration of, or attempt to perpetrate” the laundry list of crimes such as arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, etc. If a defendant can successfully prove that none of the listed crimes was committed or attempted, then he or she could avoid a conviction under the felony-murder rule.

Effective Plea Bargaining

One important tool in every defense counsel’s tool bag is effective plea bargaining. In the case of murder, plea bargaining takes on increased importance because of the potential penalty of life in prison without the possibility of parole if a person is convicted of First Degree Murder. Even a plea to Second Degree Murder, instead of a First Degree Murder, can change the life of the accused because he or she has at least the right to be considered for parole in the future after completing his or her mandatory minimum sentence.

 

Besides negotiating a First Degree Murder down to a Second, effective plea bargaining can often include negotiating a Second Degree Murder down to Voluntary or Involuntary Manslaughter, or even Negligent Homicide. The potential sentences for each less severe felony can drastically impact the time, if any, that you spend in prison.

 

At Arnold E. Reed & Associates, P.C., we value people. We understand the importance of challenging everything when defending a person charged with murder. Litigating everything requires competence and experience few attorneys have. At Arnold E. Reed & Associates, P.C., we can provide you with the best criminal defense—call us because your life depends on it.