The murders in London in 1888, attributed to Jack the Ripper, were bloody and bizarre. The Ripper tour the students and I took, graphically narrated by our guide, was stomach turning. The murders involved not only the slashing of several women’s throats but also the removal of their internal organs, including their uteruses. These grisly murders drew widespread public attention (and continue to fascinate people today). Why were such horrific crimes the subject of so much interest? Continue reading
Tag Archives: murder
James Courtney was charged with first degree murder in 2009 for shooting and killing James Deberry outside Deberry’s Raleigh apartment. Courtney was tried on those charges in December 2010. The jury deadlocked, and the judge declared a mistrial. Four months later, the State dismissed the murder charges, stating on the dismissal form that it had elected not to retry the case. Four years later, the State changed its mind. After gathering new evidence, it sought and received a 2015 indictment once again charging Courtney with first degree murder for killing Deberry. Courtney moved to dismiss the charges, arguing that the State’s dismissal of the initial murder charges following the mistrial precluded the State from recharging him. Was he right?
Darian Mosley’s sentence for second degree murder was vacated last week because the jury did not specify whether he acted with (1) hatred, ill-will or spite, (2) intentionally and without justification, or (3) a depraved heart when he shot and killed his girlfriend, Amy Parker, in April 2013. The court of appeals held in State v. Mosley that, without knowing the theory of malice that supported the verdict, the trial judge erred in sentencing Mosley as a Class B1 felon. The appellate court remanded the case to the trial court with instructions to sentence Mosley for a Class B2 felony. It also recommended actions for trial courts instructing juries in future murder cases.
The murder of three young, gifted students in Chapel Hill Tuesday evening has generated a local, national, and international outpouring of grief and outrage. Deah Barakat, 23, his wife, Yusor Abu-Salha, 21, and her sister, Razan Abu-Salha, 19, were shot dead in the Finley Forest condominium where newlyweds Deah and Yusor lived. A neighbor, Craig Stephen Hicks, fled the area after the shooting, but later turned himself into law enforcement officers. Hicks is charged with first degree murder in their deaths, and is being held without bond in Raleigh’s Central Prison. Police say that the killings were motivated by an ongoing neighbor dispute about, of all things, parking. Nevertheless, many, including Yusor and Razan’s father, suspect it also may have been motivated by the fact that the three were Muslims. Yusor regularly wore a headscarf—an outward manifestation of her faith. Continue reading →
A man in Charlotte was struck by a stray bullet on July 4th. The police say that “it appears that it was not an intentional shooting but that someone . . . fired a celebration shot into the air” and happened to hit the man. The shot could have been fired anywhere in a several mile radius and prospects for identifying the shooter appear to be slim. A story about the incident is here.
The story notes that stray bullet impacts, while not common, do occur from time to time. It refers specifically to a 1987 tragedy in which “a stray gunshot killed a 16-year-old girl floating on a raft in the crowded Ocean Island wave pool at Carowinds.” An ABC News story about New Year’s Eve gunfire and the harm it causes is here.
The story led me to think about what criminal charges would be appropriate in such a case if the shooter could be identified. To abstract away from the Charlotte incident, imagine the following fact pattern: Gary Gunslinger legally owns a rifle. It is his birthday and he is hosting a family cookout in his backyard. Gary has had a drink or two and decides to celebrate by shooting his rifle into the air. He’s not trying to hit anyone, but a bullet strikes Valerie Victim as she stands waiting for a bus a mile away.
If Valerie is killed, the first issue is whether any homicide charge applies. If Gary’s conduct is so reckless that it amounts to malice, a second-degree murder charge would be proper. Although I couldn’t find a case on point, I would expect a court to look at that issue through a framework similar to that used to examine vehicular homicides. Factors like the extent of Gary’s intoxication, the number of shots fired, the recklessness with which the shots were fired, whether Gary owned the gun legally, and whether Gary had any history of reckless behavior with a gun would all be relevant. If a court were to find the evidence insufficient to establish malice, then involuntary manslaughter would be a proper charge.
Let me pause for a quick reader poll. Assuming that Gary had consumed two beers, fired four shots into the air, and has no known history of irresponsibility with a gun, which charge would you consider most appropriate?
If Valerie were injured but not killed, Gary could be charged with an assault by culpable negligence. (For a discussion of the negligence theory of assault, see Jessica Smith, North Carolina Crimes 113 (7th ed. 2012).)
A few other charges are possible. If Gary’s yard were fenced in, perhaps he could be charged with discharging a firearm from within an enclosure. G.S. 14-34.9. There aren’t any appellate cases citing that section, so it isn’t clear how far the term “enclosure” reaches. Finally, if Gary lived in a jurisdiction that prohibited the discharge of firearms, he could be charged under the appropriate ordinance. For example, Section 15-13 of the Charlotte City Code prohibits “shoot[ing] any firearm in the city,” except at a range or with the city’s permission. Most other larger cities have similar ordinances, though many, unlike Charlotte’s, contain an exception for self-defense. Cf. G.S. 160A-189 (“A city may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law-enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property.”).
If folks see the issue differently, think I’ve missed a likely charge, or have other comments about this type of conduct, please weigh in by posting a comment.
A recent Court of Appeals (here) dealt with the issue of whether the evidence was sufficient to establish premeditation and deliberation in a first-degree murder case (it was). Since that issue arises with some frequency, I’ll address it here.
“Premeditation” means thinking about something beforehand, for some length of time, however short; “deliberation” refers to an intention to kill formed while defendant was in a “cool state of blood.” State v. Bullock, 326 N.C. 253 (1990); State v. Ruof, 296 N.C. 623 (1979); State v. Blue, 207 N.C. App. 267 (2010) (the defendant’s statement that he formed the intent to kill and contemplated whether he would be caught before he began the attack was sufficient evidence that he formed the intent to kill in a cool state of blood). A cool state of blood does not mean absence of passion and emotion; a person may be capable of forming murderous intent, premeditating and deliberating, yet be prompted and to a large extent controlled by passion at the time of the offense. State v. Vause, 328 N.C. 231 (1991). Rather, it means that a killing was committed with a fixed design to kill, regardless of whether the defendant was angry or gripped with passion at the time of the act. Bullock, 326 N.C. 253; Ruof, 296 N.C. 623. It also means that the defendant’s anger or emotion was not so strong as to overcome his or her reason. State v. Hunt, 330 N.C. 425 (1991). Premeditation and deliberation need not last for any perceptible length of time. State v. Walters, 275 N.C. 615 (1969); State v. Bynum, 175 N.C. 777 (1918).
Circumstantial evidence, rather than direct evidence, generally proves premeditation and deliberation. State v. Bell, 338 N.C. 363 (1994). Circumstances showing premeditation and deliberation include:
- lack of provocation, State v. Corn, 303 N.C. 293 (1981);
- the defendant’s conduct before and after killing, State v. Walker, 332 N.C. 520 (1992); State v. Lane, 328 N.C. 598 (1991); State v. Freeman, 326 N.C. 40 (1990),
- the defendant’s statements of ill will toward the victim, State v. Gallagher, 313 N.C. 132 (1985);
- the defendant’s previous assault of the victim, State v. Simpson, 327 N.C. 178 (1990);
- previous difficulties between the defendant and the victim, State v. Bullock, 326 N.C. 253, 258 (1990);
- threats before and during the killing, id.;
- the brutal nature of the killing (such as by strangulation), State v. Richardson, 328 N.C. 505 (1991); State v. Greene, 332 N.C. 565 (1992);
- blows dealt after the victim is helpless, Bullock, 326 N.C. at 258; and
- the nature and number of the victim’s wounds, State v. Watson, 338 N.C. 168 (1994); State v. Montgomery, 331 N.C. 559 (1992); State v. Vause, 328 N.C. 231 (1991).
Want to explore further?
For cases in which the evidence sufficiently established premeditation and deliberation, see State v. Horskins, __ N.C. App. __, 743 S.E.2d 704, 711 (2013) (after words in a night club parking lot the defendant shot the victim, who was unarmed, had not reached for a weapon, had not engaged the defendant in a fight, and did not provoke the defendant’s violent response; after the victim fell from the defendant’s first shot, the defendant shot the victim six more times; the defendant left the scene and attempted to hide evidence); State v. Rogers, __ N.C. App. __, 742 S.E.2d 622, 626 (2013) (the victim begged for his life and was shot eight times, primarily in the head and chest, and there was a lack of provocation); State v. Broom, __ N.C. App. __, 736 S.E.2d 802, 808 (2013) (the defendant was having an affair with another woman and wanted his wife to terminate her pregnancy; he became angry when his wife said that if they divorced she might move out of the state and take the children with her; and before he shot her, the defendant placed his wife’s cell phone out of her reach); State v. Bonilla, 209 N.C. App. 576 (2011) (after the defendant and an accomplice beat and kicked the victim, they hog-tied him so severely that his spine was fractured and put tissue in his mouth; due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and died from a combination of suffocation and strangulation); State v. Bass, 190 N.C. App. 339, 345 (2008) (the defendant had time to contemplate his actions, threatened the victim, was not provoked, shot the victim in the back, and did not surrender); State v. Forrest, 168 N.C. App. 614, 626 (2005) (the defendant attacked an unsuspecting victim and made statements suggesting an intent to kill); and State v. Dennison, 171 N.C. App. 504, 509–10 (2005) (the wounds were brutal, the blows multiple, the victim had harassed the defendant, and the defendant left the crime scene).
For cases in which the evidence was insufficient to establish premeditation and deliberation, see State v. Corn, 303 N.C. 293, 297–98 (1981) (the victim entered the defendant’s home while highly intoxicated, approached the sofa on which the defendant was lying, and insulted the defendant; the defendant immediately jumped up, grabbed a nearby rifle, and shot the victim several times in the chest; the incident lasted only a few moments; there was no evidence that the defendant acted with a fixed design, had sufficient time to weigh the consequences of his actions, previously threatened the victim, or exhibited conduct indicating that he formed any intent to kill before to the incident; there was no significant history of arguments or ill will between the parties and although the defendant fired several shots, there was no evidence that he shot or hit the victim once the victim fell); and State v. Williams, 144 N.C. App. 526, 531 (2001) (there was no evidence of animosity, that the defendant and the victim knew each other before incident, or that defendant threatened the victim; when the victim provoked the defendant by assaulting him, the defendant immediately retaliated by firing one shot; the defendant’s actions did not show planning or forethought; although the defendant left the scene, he turned himself in the next day).
Suppose that a murder defendant goes by the street name “Hit Man.” The prosecution wants the investigating officer to testify that she received a tip that “Hit Man” committed the crime, and that she knew that the defendant used the nickname “Hit Man.” Defense counsel moves to prohibit all references to the nickname during the trial, arguing that it is de facto character evidence, which is generally prohibited under Rule 404(a), and that it is in any event far more prejudicial than probative and so barred under Rule 403. How should the judge rule?
Case law suggests that a brief reference to a defendant’s unflattering street name is permissible. However, the officer and the prosecutor should not unduly emphasize the nickname.
North Carolina cases. Our appellate courts have decided several nickname cases, and in every case, the courts have ruled in favor of the state:
- In State v. Bonnett, 348 N.C. 417 (1998), the court ruled that a witness’s references to defendant’s nickname, “Homicide,” were not prejudicial given that defense counsel and the defendant used the same term. In any event, the court stated, it is not error to refer to the defendant by the name by which he is generally known.
- In State v. Swift, 290 N.C. 383 (1976), the court said, “we do not believe it would have been error to refer to defendant by the name by which he was generally known [in this case, “Poison Ivy” or “Poison”]. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname.”
- In State v. Riley, 159 N.C. App. 546 (2003), the court concluded that an officer’s reference to defendant’s nickname, “Dirty,” was not prejudicial in light of the overwhelming evidence of the defendant’s guilt and so was not plain error.
These cases don’t completely close the door to defense objections about nicknames. The nicknames in Swift and Riley, while unflattering, were not unambiguous references to criminal activity. The nickname at issue in Bonnett was much worse, but the defendant’s appeal was undermined by the fact that defense counsel and the defendant used the name themselves.
National cases. Although the vast majority of decisions nationally have rejected appeals based on references to defendants’ nicknames, a few cases have found the use of a defendant’s nickname to be so prejudicial as to require a new trial. The leading case is United States v. Farmer, 583 F.3d 131 (2d Cir. 2009), where the Second Circuit condemned the prosecution’s repeated references to the defendant’s nickname, “Murder.” The court distinguished other nickname cases in which no prejudicial error was found, noting that those cases generally involved less damning nicknames, fewer references to the nicknames, or limiting instructions regarding the nicknames. See also Taylor v. State, 23 A.2d 851 (Del. 2011) (awarding a new trial on other grounds to a murder defendant and recommending that “in the retrial, the court should make an effort to delete all references to [the defendant’s nickname, “Murder”] if possible”). But see Com. v. Williams, 58 A.3d 795 (Pa. Super. 2012) (no error in allowing prosecutor and prosecution witnesses to refer to the defendant by his nickname, “Killa”; prosecution “did not use [the] nickname to suggest [the defendant] had a violent character, but used it to show that the witnesses recognized [him] . . . even though the witnesses did not know [his] real name”); Burtts v. State, 499 S.E.2d 326 (Ga. 1998) (no error where witnesses identified the defendant as “Killer Corey” because they did not know his full name; “the use of a nickname does not place the character of an accused in issue”).
Practice pointers. The upshot for the prosecution is to exercise restraint. The more frequently a defendant’s nickname is used, the more closely it relates to criminal activity, and the more careful the defendant is to avoid using the nickname himself and to object when it is used by others, the more likely that the use of the nickname will be deemed improper. If a defendant’s nickname is likely to feature prominently in a trial, it would be wise to ask the judge to give a limiting instruction.
The defense should tread carefully, too. Sometimes the shoe is on the other foot and the defense wants to make the defendant’s nickname known to the jury. But that can carry unintended consequences, as in State v. Berry, 356 N.C. 490 (2002). In that case, a murder defendant elicited testimony that his nickname was “Crazy K,” “apparently in an attempt to tie the nickname to defendant’s purported lack of mental stability.” But that “gave the State the opportunity to establish the source of the nickname,” which was gang-related.
Suppose that Dan shoots Victor on January 1, and that Victor dies from his wounds, but not until January 3. When a magistrate issues an arrest warrant, or the grand jury returns an indictment, should the date of offense be listed as January 1, the date of the attack? Or January 3, the date of the victim’s death?
My view is that either one is probably fine, but that alleging a range of dates spanning the assault and the victim’s death is the best solution. Here are summaries of some relevant cases:
- State v. Price, 310 N.C. 596 (1984) (defendant shot victim on December 17, but victim did not die until February 5; murder indictment initially listed February 5 as the offense date, but the state moved to, and was allowed to, amend the date to December 17; court characterizes this as “the date the offense occurred” and ruled that the amendment was proper as it did not substantially alter the charge; also states that “the date on the indictment for murder, if erroneous, was not an essential element of the offense” and cites G.S. 15-155, which provides that errors as to date are not fatal defects)
- State v. Holton, 284 N.C. 391 (1973) (defendant shot victim in September, but victim did not die until December; indictment gave the September date as the date of the offense; no fatal variance between allegation and proof: “The indictment in this case stated the date on which the fatal injury was inflicted rather than the date on which the death occurred. This Court, as early as 1854 in State v. Baker, 46 N.C. 267 [(1854)], held that where an indictment charged the murder as of the date the blow was given, and the evidence revealed that the victim lived for twenty days after receiving the blow and then died, such variance was not material.”)
- Manning v. State, 182 S.E.2d 690 (Ga. App. 1971) (indictment alleged “that defendant did kill and murder one Alvin Meeler on June 5, 1969 by shooting him with a pistol” and the court ruled that “there was no fatal variance in the allegata and probata where it appeared that Meeler was shot on June 5, 1969, but languished and died June 11, 1969”)
Sometimes a range of dates is clearly the best solution, as in some child abuse cases where the victim’s death is the culmination of a long series of events. See, e.g., State v. Duncan, 835 So. 2d 623 (La. Ct. App. 1st Cir. 2002) (original indictment in child abuse murder case alleged that the offense took place on December 19, 2000; state was properly allowed to amend the indictment to “between 12/17/96 and 12/18/2000,” the dates of the child’s birth and death; “years of abuse, mistreatment, and starvation” caused the victim’s death).
The murder rate in North Carolina is falling. The same is true nationally. A recent article suggests that shootings are actually up, but deaths are down due to medical advances. At least the first part of that claim is almost certainly wrong.
The chart below illustrates the decline in murders.
The article in question is this one, from the Wall Street Journal. It is entitled In Medical Triumph, Homicides Fall Despite Soaring Gun Violence. It argues that the fall in homicides cannot be due to falling overall crime rates because “[t]he reported number of people treated for gunshot attacks from 2001 to 2011 has grown by nearly half.”
Instead, the article concludes, the decline is due to improved medical care for gunshot victims, including “the spread of hospital trauma centers—which specialize in treating severe injuries—the increased use of helicopters to ferry patients, better training of first-responders and lessons gleaned from the battlefields of Iraq and Afghanistan.”
I seriously doubt the suggestion that there’s been a 50% increase in shootings since 2001. Aggravated assaults are way down, according to FBI data. The FBI’s Uniform Crime Reporting system defines an aggravated assault as an assault “for the purpose of inflicting severe or aggravated bodily injury . . . usually accompanied by the use of a weapon or by other means likely to produce death or great bodily harm.” Here’s what FBI data show about aggravated assaults.
The decline in aggravated assaults pretty closely tracks the decline in murders. It suggests that the reduction in violent conflicts explains the fall in homicides, and casts severe doubt on the idea that more people are getting shot.
Of course, it is theoretically possible that while there are fewer aggravated assaults overall, more of them involve gunplay. But the data that claim to show a rise in shootings don’t look very solid. The data come from the National Electronic Injury Surveillance System, run by the U.S. Consumer Product Safety Commission. That data is based on a “probability sample of hospitals in the U.S.,” so it is not comprehensive. And, the data are really intended to measure “injur[ies] associated with consumer products,” not criminal activity. This adds to my skepticism that shootings are up by 50%, or that medical care has advanced so rapidly that it can more than offset a 50% rise in shootings.
None of this is to say that medical care is not improving or that it has not contributed at all to falling murder rates. In fact, the most intriguing data cited by the article suggest a modest effect. The article cites data to the effect that “[i]n 2010, 13.96% of U.S. shooting victims died, almost two percentage points lower than in 2007.” Based on my back of the envelope calculations, a fall in fatality rate from 16% to 14% would almost exactly explain the observed decline in murders from 2007 to 2010 assuming a constant number of shootings. (It would be nowhere near enough to offset the supposed 50% increase in shootings.) For the reasons given above, I doubt that the number of shootings has been constant, so I suspect that even this modest effect is probably overstated.
Medical progress, probably. Medical triumph, I doubt.
Senate Bill 105, which passed both chambers of the General Assembly overwhelmingly and appears certain to become law (either with the Governor’s signature or because of the passage of time without her veto), increases the penalty for most second-degree murders. Second-degree murder is currently a B2 felony, but for offenses committed on or after December 1, 2012, it’s going to be a B1 felony – unless malice is established based on recklessness or the murder results from drug distribution, in which case, second-degree murder will remain a B2 offense.
What follows are a couple of quick thoughts about the change, including, at the end, a couple of comments about interesting implementation issues presented by the bill.
- Historical context. The punishment for second-degree murder has varied quite a bit over the years. Under the Fair Sentencing Act, second-degree murder was a Class C felony. It carried a possible prison term of 0 to 50 years, with a presumptive term of 15 years. Prior to Fair Sentencing, second-degree murder was an unclassified felony, punishable by two years to life in prison.
- Longer sentences. According to Sentencing Commission data, the average sentence length for a conviction of a B2 felony in FY 2010/11 was 170 months minimum. By contrast, the average sentence length for a conviction of a B1 felony was 230 months minimum. Looking at it another way, for a defendant in prior record level III, the top of the presumptive range is 207 months minimum for a B2, but 317 months minimum for a B1. So there will be something like a 50% increase in sentence length for most second-degree murders.
- Plea bargains? Part of the impetus behind the bill was the idea that the state would be more likely to offer plea bargains in first-degree murder cases if second-degree convictions carried longer sentences. Whether that’s true remains to be seen, but the possibility makes the ultimate effect of the bill on the prison population – and the budget – somewhat uncertain: second-degree murderers will serve longer sentences, but there may be fewer first-degree murderers serving life without parole. Some of these issues are discussed in the fiscal note on the bill.
- Will the B2 row on the grid fade into insignificance? Second-degree murder was, for a long time, the only B2 felony, and it still accounts for the vast majority of B2 felony convictions. According to the Sentencing Commission’s list of felony offenses by class, there are now three B2 felonies: second-degree murder, second-degree fetal homicide (since 2011), and repeat felony death by vehicle (since 2006). The latter two together are dwarfed in terms of the number of cases by the first. But the B2 row on the grid won’t fall entirely into desuetude: as noted above, some second-degree murders will remain B2 felonies, and an attempt or conspiracy to commit a Class A or Class B1 offense also results in Class B2 punishment. G.S. 14-2.4 (conspiracy); G.S. 14-2.5 (attempt).
- B1 isn’t just for sex crimes anymore. In general, B1 felonies are serious sex crimes, like first-degree rape, first-degree sexual offense, and aggravated incest. The only non-sex crimes that are B1 felonies are certain offenses related to chemical, biological, and nuclear weapons of mass destruction – offenses that are virtually never charged. Adding second-degree murder to the list of B1 felonies will change the composition of that offense class significantly.
- Implementation. Because the type of malice involved will determine the offense class, it appears that the jury returning a verdict of second-degree murder will need to make findings regarding the theory or theories of malice at issue. This will require changes both to the jury instructions and to the verdict sheet in such cases. I don’t think that there will need to be any changes at the charging stage, though I haven’t thought very carefully about it.
- Prior record level. Under G.S. 15A-1340.14(c), prior convictions are given points based on the current classification of the offense of conviction. Does this mean that after December 1, any defendant with a prior second-degree murder conviction who commits a new crime will have 9 prior record points for the murder (for a prior B1) rather than 6 (for a prior B2)? I doubt it. Remember that not all second-degree murders will be B1 felonies. Furthermore, it may be difficult to determine whether a defendant’s prior second-degree murder conviction involved malice based on recklessness or resulted from drug distribution. Thus, many or maybe even all defendants with prior second-degree murder convictions will be able to argue that their records are ambiguous and that any ambiguity should be resolved in their favor, i.e., that they should still receive only 6 prior record points.
If readers have thought of other possible implications of this bill, please chime in.