Justice Matters with Bryan Porter: The elements of a murder indictment

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Bryan Porter in 2016 (Courtesy photo)
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By Bryan Porter

Anyone who has ever watched a police procedural will recognize this scene: a hardscrabble homicide detective with a harsh Bronx accent sits in a cramped office across the table from a green, visibly nervous prosecutor. The two are discussing which charges to bring in a homicide case, and the older detective is vehemently disagreeing with the lawyer’s position.

“This is murder one! Murder two at least!” grumbles the gumshoe. 

“I’m sorry, Riggs, the evidence only supports manslaughter,” the attorney says, lowering his gaze as he speaks.

“You’ve got to be kidding me, you spineless jellyfish,” fumes the detective as he rises from his chair and storms out of the office.

While this scene may strike a familiar chord with the reader, what is likely unfamiliar is the legal analysis behind such charging decisions. What are the actual elements of a murder indictment? When is manslaughter the appropriate charge?

This article seeks to briefly explain the five levels of homicide provided for by the
Code of Virginia.

The charging analysis begins with a presumption: in Virginia, the intentional, unlawful killing of a person is presumed to have been committed maliciously and is therefore classified as murder in the second degree.

The presence of certain aggravating or mitigating circumstances determines whether the charge is elevated to a more serious form of murder, or reduced to manslaughter.
There is no need for the prosecution to prove a specific intent to kill in order to secure a
conviction for second-degree murder.

All that is needed is proof that the defendant committed an intentional act, that he did so maliciously, and that the act resulted in death. Malice is defined as “the intentional doing of a wrongful act without legal justification,” and may be inferred from the knowing use of a deadly weapon.

The charge may be elevated to first-degree murder if the evidence establishes that the crime was “willful, deliberate and premeditated.” Put another way, first-degree murder requires proof of a specific intent to kill. However, premeditation does not necessarily mean planning out a murder for weeks in advance; indeed, a jury is specifically instructed that the intent to kill “need not exist for any particular length of time” for a first-degree murder conviction to lie.

Only certain heinous homicides are punishable as capital murder, and these crimes are specifically delineated by the code. There are 15 separate statutory triggers for capital murder, including the premeditated murder of a law-enforcement officer, a murder for hire or the murder of more than one person in a three-year period, a provision designed to punish serial killers.

The difference between murder and manslaughter is the presence of malice. Voluntary manslaughter is the intentional killing of another person, but in the absence of malice. Voluntary manslaughter exists when a person kills in the “sudden heat of passion upon reasonable provocation.” In Virginia, words alone, no matter how offensive or insulting, are never sufficient to reduce a murder to manslaughter.

The textbook example of “heat of passion” is a person returning home early
from work only to find their spouse in the arms of a paramour. Other examples may be found, such as a victim who engaged in mutual combat with the defendant prior to being killed.

Involuntary manslaughter is the lowest grade of homicide, and it requires proof that the defendant unintentionally killed someone through negligence so “gross, wanton,
and culpable as to show a callous disregard of human life.” In certain circumstances, then, even a truly accidental killing may result in criminal liability. A drunk driver who causes a crash that kills an innocent victim did not intend to kill, but is guilty of causing a death by driving in a criminally negligent manner.

Capital murder is punishable by life in prison, or a death sentence. First-degree murder carries a penalty of 20 years in prison to life, and the range for second-degree murder is five to 40 years to serve. Both grades of manslaughter carry the same maximum statutory penalty: 10 years to serve in prison.

The writer is the Commonwealth’s Attorney for Alexandria.

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