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III. Homicide
  • 1 III.A. Statutes

    • 1.1 CA Penal Code secs. 187 to 189, 192

      1
      CA Penal Code § 187
      2

      (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

      3

      (b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

      4

      (1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

      5

      (2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

      6

      (3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

      7

      (c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.

      8
      CA Penal Code § 188
      9

      Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

      10

      When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

      11
      CA Penal Code § 189
      12

      All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

      13

      As used in this section, "destructive device" means any destructive device as defined in Section 16460, and explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.

      14

      As used in this section, "weapon of mass destruction" means any item defined in Section 11417.

      15

      To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

      16
      CA Penal Code § 189.5
      17

      (a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

      18

      (b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.

      19
      CA Penal Code § 190
      20

      (a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

      21

      Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.

      22

      (b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.

      23

      (c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true:

      24

      (1) The defendant specifically intended to kill the peace officer.

      (2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer.

      (3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022.

      (4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.

      (d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.

      (e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.

      25
      CA Penal Code § 190.03
      26

      (a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole.

      27

      (b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation.

      28

      (c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55.

      29

      (d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.

      30
      CA Penal Code § 190.05
      31

      (a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.

      32

      (b) A prior prison term for murder for purposes of this section includes either of the following:

      33

      (1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.

      (2) Incarceration at a facility operated by the Youth Authority for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Director of Corrections.

      34

      (c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.

      35

      (d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.

      36

      (e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).

      37

      (f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

      38

      If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If the new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in the state prison for a term of 15 years to life.

      39

      (g) Evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026, shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

      40

      (h) In the proceeding on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition, and physical condition.

      41

      However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

      42

      However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

      43

      Except for evidence in proof of the offense or the prior prison term for murder of the first or second degree which subjects a defendant to the punishment of life without the possibility of parole, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

      44

      In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

      45

      (1) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of the prior prison term for murder.

      (2) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

      (3) The presence or absence of any prior felony conviction.

      (4) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

      (5) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

      (6) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct.

      (7) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.

      (8) Whether or not at the time of the offense the ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

      (9) The age of the defendant at the time of the crime.

      (10) Whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor.

      (11) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

      46

      After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of life without the possibility of parole if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in the state prison for 15 years to life.

      47

      (i) Nothing in this section shall be construed to prohibit the charging of finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

      48
      CA Penal Code § 190.1
      49

      A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:

      50

      (a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.

      (b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.

      (c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.

      51
      CA Penal Code § 190.2 
      52

      (a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:

      53

      (1) The murder was intentional and carried out for financial gain.

      (2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.

      (3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.

      (4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

      (5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.

      (6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

      (7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or  reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace

      officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.

      (8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.

      (9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.

      (10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, "juvenile proceeding" means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.

      (11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

      (12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

      (13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

      (14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.

      (15) The defendant intentionally killed the victim by means of lying in wait.

      (16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.

      (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:

      (A) Robbery in violation of Section 211 or 212.5.

      (B) Kidnapping in violation of Section 207, 209, or 209.5.

      (C) Rape in violation of Section 261.

      (D) Sodomy in violation of Section 286.

      (E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.

      (F) Oral copulation in violation of Section 288a.

      (G) Burglary in the first or second degree in violation of Section 460.

      (H) Arson in violation of subdivision (b) of Section 451.

      (I) Train wrecking in violation of Section 219.

      (J) Mayhem in violation of Section 203.

      (K) Rape by instrument in violation of Section 289.

      (L) Carjacking, as defined in Section 215.

      (M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.

      (18) The murder was intentional and involved the infliction of torture.

      (19) The defendant intentionally killed the victim by the administration of poison.

      (20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

      (21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, "motor vehicle" means any vehicle as defined in Section 415 of the Vehicle Code.

      (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

      54

      (b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.

      55

      (c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.

      56

      (d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.

      57

      The penalty shall be determined as provided in this section and Sections 190.1, 190.3, 190.4, and 190.5.

      58
      CA Penal Code § 190.25
      59

      (a) The penalty for a defendant found guilty of murder in the first degree shall be confinement in state prison for a term of life without the possibility of parole in any case in which any of the following special circumstances has been charged and specially found under Section 190.4, to be true: the victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed, and such defendant knew or reasonably should have known that such victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended
      in the air, used for the transportation of persons for hire, or was a station agent or ticket agent for the entity providing such transportation, engaged in the performance of his or her duties.

      60

      (b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.

      61

      (c) Nothing in this section shall be construed to prohibit the charging or finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

      62
      CA Penal Code § 190.3
      63

      If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.

      64

      However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

      65

      However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

      66

      Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

      67

      The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.

      68

      In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

      69

      (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

      (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

      (c) The presence or absence of any prior felony conviction.

      (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

      (e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

      (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

      (g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.

      (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.

      (i) The age of the defendant at the time of the crime.

      (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

      (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

      70

      After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

      71
      CA Penal Code § 190.4
      72

      (a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.

      73

      In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.

      74

      If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.

      75

      If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.

      76

      In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.

      77

      (b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

      78

      If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.

      79

      (c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.

      80

      (d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

      81

      (e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances  referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.

      82

      The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant's automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).

      83
      CA Penal Code § 190.41
      84

      Notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant's extrajudicial statement.

      85
      CA Penal Code § 190.5
      86

      (a) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.

      87

      (b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.

      88

      (c) The trier of fact shall determine the existence of any special circumstance pursuant to the procedure set forth in Section 190.4.

      89
      CA Penal Code § 190.6
      90

      (a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.

      91

      (b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.

      92

      (c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.

      93

      (d) The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.

      94
      CA Penal Code § 190.7
      95

      (a) The "entire record" referred to in Section 190.6 includes, but is not limited to, the following:

      96

      (1) The normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction.

      (2) A copy of any other paper or record on file or lodged with the superior or municipal court and a transcript of any other oral proceeding reported in the superior or municipal court pertaining to the trial of the cause.

      (b) Notwithstanding this section, the Judicial Council may adopt rules, not inconsistent with the purpose of Section 190.6, specifically pertaining to the content, preparation and certification of the record on appeal when a judgment of death has been pronounced.

      97
      CA Penal Code § 190.8
      98

      (a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.

      99

      (b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.

      100

      (c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.

      101

      Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.

      102

      (d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.

      103

      (e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.

      104

      (f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.

      105

      (g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.

      106

      (h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.

      107

      (i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.

      108

      (j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.

      109

      (k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997.

      110
      CA Penal Code § 190.9
      111

      (a) (1) In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2).

      112

      (2) Upon receiving notification from the prosecution that the death penalty is being sought, the clerk shall order the transcription and preparation of the record of all proceedings prior to and including the preliminary hearing in the manner prescribed by the Judicial Council in the rules of court. The record of all proceedings prior to and including the preliminary hearing shall be certified by the court no later than 120 days following notification unless the time is extended pursuant to rules of court adopted by the Judicial Council. Upon certification, the record of all proceedings is incorporated into the superior court record.

      113

      (b) (1) The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section.

      114

      (2) Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment is not a ground for reversal.

      115

      (c) Any computer-readable transcript produced by court reporters pursuant to this section shall conform to the requirements of Section 271 of the Code of Civil Procedure.

      116
      CA Penal Code § 191
      117

      The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter.

      118
      CA Penal Code §191.5
      119

      (a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

      120

      (b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

      121

      (c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.   

      122

      (2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

      123

      (d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.

      124

      Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.

      125

      (e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

      126

      (f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

      127

      (g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.

      128
      CA Penal Code § 192
      129

      Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

      130

      (a) Voluntary--upon a sudden quarrel or heat of passion.

      (b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

      (c) Vehicular--

      (1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

      (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

      (3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.

      131

      This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

      132

      "Gross negligence," as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

      133
      CA Penal Code § 192.5 
      134

      Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:

      135

      (a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

      (b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

      (c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

      (d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

      (e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.

      136
      CA Penal Code § 193
      137

      (a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.

      138

      (b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

      139

      (c) Vehicular manslaughter is punishable as follows:

      140

      (1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.

      (2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.

      (3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.

      141
      CA Penal Code § 193.5
      142

      Manslaughter committed during the operation of a vessel is punishable as follows:

      143

      (a) A violation of subdivision (a) of Section 192.5 is punishable by imprisonment in the state prison for 4, 6, or 10 years.

      (b) A violation of subdivision (b) of Section 192.5 is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

      (c) A violation of subdivision (c) of Section 192.5 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.

      (d) A violation of subdivision (d) of Section 192.5 is punishable by imprisonment in the county jail for not more than one year.

      144
      Penal Code § 193.7
      145

      A person convicted of a violation of subdivision (b) of Section 191.5 that occurred within seven years of two or more separate violations of Section 23103, as specified in Section 23103.5, of, or Section 23152 or 23153 of, the Vehicle Code, or any combination thereof, that resulted in convictions, shall be designated as an habitual traffic offender subject to paragraph (3) of subdivision (e) of Section 14601.3 of the Vehicle Code, for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350 of the Vehicle Code.

      146
      Penal Code § 193.8
      147

      (a) An adult, who is the registered owner of a motor vehicle or in possession of a motor vehicle, shall not relinquish possession of the vehicle to a minor for the purpose of driving if the following conditions exist:

      148

      (1) The adult owner or person in possession of the vehicle knew or reasonably should have known that the minor was intoxicated at the time possession was relinquished.

      (2) A petition was sustained or the minor was convicted of a violation of Section 23103 as specified in Section 23103.5, 23140, 23152, or 23153 of the Vehicle Code or a violation of Section 191.5 or subdivision (a) of Section 192.5.

      (3) The minor does not otherwise have a lawful right to possession of the vehicle.

      149

      (b) The offense described in subdivision (a) shall not apply to commercial bailments, motor vehicle leases, or parking arrangements, whether or not for compensation, provided by hotels, motels, or food facilities for customers, guests, or other invitees thereof. For purposes of this subdivision, hotel and motel shall have the same meaning as in subdivision (b) of Section 25503.16 of the Business and Professions Code and food facility shall have the same meaning as in Section 113785 of the Health and Safety Code.

      150

      (c) If an adult is convicted of the offense described in subdivision (a), that person shall be punished by a fine not exceeding one thousand dollars  ($1,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment. An adult convicted of the offense described in subdivision (a) shall not be subject to driver's license suspension or revocation or attendance at a licensed alcohol or drug education and counseling program for persons who drive under the influence.

      151
      CA Penal Code § 194
      152

      To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.

      153
      CA Penal Code § 195
      154

      Homicide is excusable in the following cases:

      155

      1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.

      2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.

      156
      CA Penal Code § 196
      157

      Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--

      158

      1. In obedience to any judgment of a competent Court; or,

      2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,

      3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.

      159
      CA Penal Code § 197
      160

      Homicide is also justifiable when committed by any person in any of the following cases:

      161

      1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,

      2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,

      3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,

      4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

      162
      CA Penal Code § 198
      163

      A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.

      164
      CA Penal Code § 198.5
      165

      Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

      166

      As used in this section, great bodily injury means a significant or substantial physical injury.

      167
      CA Penal Code § 199
      168

      The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.

    • 1.2 PA Consol. Statutes, Title secs. 2501 to 2505 (2011)

      1

      Enactment. Chapter 25 was added December 6, 1972, P.L.1482, No.334, effective in six months.

      2

      Cross References. Chapter 25 is referred to in sections 911, 2602 of this title; section 5432 of Title 20 (Decedents, Estates and Fiduciaries); sections 2511, 5329, 6344 of Title 23 (Domestic Relations); sections 5985.1, 6302 of Title 42 (Judiciary and Judicial Procedure).

      3
      § 2501. Criminal homicide.
      4

      (a) Offense defined.--A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

      5

      (b) Classification.--Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.

      6

      Cross References. Section 2501 is referred to in section 5708 of this title; section 4503 of Title 42 (Judiciary and Judicial Procedure).

      7
      § 2502. Murder.
      8

      (a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

      9

      (b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

      10

      (c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

      11

      (d) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:

      12

      "Fireman." Includes any employee or member of a municipal fire department or volunteer fire company.

      "Hijacking." Any unlawful or unauthorized seizure or exercise of control, by force or violence or threat of force or violence.

      "Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

      "Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

      "Principal." A person who is the actor or perpetrator of the crime.

      13

      (Mar. 26, 1974, P.L.213, No.46, eff. imd.; Apr. 28, 1978, P.L.84, No.39, eff. 60 days)

      14

      Cross References. Section 2502 is referred to in sections 2507, 2602, 5708, 6105 of this title; section 3304 of Title 5 (Athletics and Sports); section 5329 of Title 23 (Domestic Relations); sections 1515, 5551, 9711.1, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 6124, 7122 of Title 61 (Prisons and Parole).

      15
      § 2503. Voluntary manslaughter.
      16

      (a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

      17

      (1) the individual killed; or

      (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

      (b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

      (c) Grading.--Voluntary manslaughter is a felony of the first degree.

      18

      (Nov. 17, 1995, 1st Sp.Sess., P.L.1144, No.36, eff. 60 days)

      19

       1995 Amendment. Act 36, 1st Sp.Sess., amended subsec. (c).

      20

      Cross References. Section 2503 is referred to in sections 5708, 6105 of this title; sections 1515, 9711, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 7122 of Title 61 (Prisons and Parole).

      21
      § 2504. Involuntary manslaughter.
      22

      (a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

      23

      (b) Grading.--Involuntary manslaughter is a misdemeanor of the first degree. Where the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, involuntary manslaughter is a felony of the second degree.

      24

      (July 6, 1995, P.L.251, No.31, eff. 60 days)

      25

      Cross References. Section 2504 is referred to in sections 2711, 6105 of this title; section 1611 of Title 75 (Vehicles).

      26
      § 2505. Causing or aiding suicide.
      27

      (a) Causing suicide as criminal homicide.--A person may be convicted of criminal homicide for causing another to commit suicide only if he intentionally causes such suicide by force, duress or deception.

      28

      (b) Aiding or soliciting suicide as an independent offense.--A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.

      29
      § 2506. Drug delivery resulting in death.
      30

      (a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

      31

      (b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.

      32

      (c) Proof of sentencing.--(Deleted by amendment).

      33

      (d) Authority of court in sentencing.--(Deleted by amendment).

      34

      (e) Appeal by Commonwealth.--(Deleted by amendment).

      35

      (f) Forfeiture.--Assets against which a forfeiture petition has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.

      36

      (Dec. 22, 1989, P.L.773, No.109, eff. imd.; Feb. 18, 1998, P.L.102, No.19, eff. 60 days; July 7, 2011, P.L.220, No.40, eff. 60 days)

      37

      Cross References. Section 2506 is referred to in section 3308 of this title; section 9714 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103 of Title 61 (Prisons and Parole).

      38
      § 2507. Criminal homicide of law enforcement officer.
      39

      (a) Murder of a law enforcement officer of the first degree.--A person commits murder of a law enforcement officer of the first degree who intentionally kills a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer.

      40

      (b) Murder of a law enforcement officer of the second degree.--A person commits murder of a law enforcement officer of the second degree who engages as a principal or an accomplice in the perpetration of a felony during which a law enforcement officer is killed while in the performance of duty.

      41

      (c) Manslaughter of a law enforcement officer in the first degree.--A person commits a felony in the first degree who does any of the following:

      42

      (1) Without lawful justification kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing:

      43

      (i) the person is acting under a sudden and intense passion resulting from serious provocation by the victim killed; or

      (ii) the person is acting under a sudden and intense passion resulting from serious provocation by another individual whom the actor endeavors to kill, but the person negligently or accidentally causes the death of the victim.

      44

      (2) Intentionally or knowingly kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing the person believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 (relating to general principles of justification), but his belief is unreasonable.

      45

      (d) Manslaughter of a law enforcement officer in the second degree.--A person commits a felony of the second degree who, as a direct result of the doing of an unlawful or lawful act in a reckless or grossly negligent manner, causes the death of a law enforcement officer while in the performance of duty and the person knew or should have known the victim was a law enforcement officer.

      46

      (e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

      47

      "Law enforcement officer." This term shall have the same meaning as the term "peace officer" is given under section 501 (relating to definitions).

      "Perpetration of a felony." As defined under section 2502(d) (relating to murder).

      48

      (Oct. 17, 2008, P.L.1628, No.131, eff. 60 days)

      49

      2008 Amendment. Act 131 added section 2507.

      50

      Cross References. Section 2507 is referred to in section 9714 of Title 42 (Judiciary and Judicial Procedure).

    • 1.3 NY Penal L. secs. 125.00, 125.10, 125.15, 125.20, 125.20, 125.25, 125.27 (2011)

      1
      § 125.00 Homicide defined.
      2

      Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.

      3
      § 125.05 Homicide, abortion and related offenses; definitions of terms.
      4

      The following definitions are applicable to this article:

      5

      1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.

      2. "Abortional act" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.

      3. "Justifiable abortional act." An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.

      6
      § 125.10 Criminally negligent homicide.
      7

      A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

      8

      Criminally negligent homicide is a class E felony.

      9
      § 125.11 Aggravated criminally negligent homicide.
      10

      A person is guilty of aggravated criminally negligent homicide when, with criminal negligence, he or she causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.

      11

      Aggravated criminally negligent homicide is a class C felony.

      12
      § 125.12 Vehicular manslaughter in the second degree.
      13

      A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either:

      14

      (1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle, vessel or public vessel in a manner that causes the death of such other person, or

      (2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, and such flammable gas, radioactive materials or explosives is the cause of such death, and as a result of such impairment by the use of alcohol, operates such motor vehicle in a manner that causes the death of such other person, or

      (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in paragraph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such snowmobile or all terrain vehicle in a manner that causes the death of such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such death while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such death, as required by this section.

      15

      Vehicular manslaughter in the second degree is a class D felony.

      16
      § 125.13 Vehicular manslaughter in the first degree.
      17

      A person is guilty of vehicular manslaughter in the first degree when  he or she commits the crime of vehicular manslaughter in the second  degree as defined in section 125.12 of this article, and either:

      18

      (1) commits such crime while operating a motor vehicle while such  person has .18 of one per centum or more by weight of alcohol in such  person's blood as shown by chemical analysis of such person's blood,  breath, urine or saliva made pursuant to the provisions of section  eleven hundred ninety-four of the vehicle and traffic law;

      (2) commits such crime while knowing or having reason to know that:

      (a) his or her license or his or her privilege of operating a motor  vehicle in another state or his or her privilege of obtaining a license  to operate a motor vehicle in another state is suspended or revoked and  such suspension or revocation is based upon a conviction in such other  state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or  his or her privilege of operating a motor vehicle in the state or his or  her privilege of obtaining a license issued by the commissioner of motor  vehicles is suspended or revoked and such suspension or revocation is  based upon either a refusal to submit to a chemical test pursuant to  section eleven hundred ninety-four of the vehicle and traffic law or  following a conviction for a violation of any of the provisions of  section eleven hundred ninety-two of the vehicle and traffic law;

      (3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

      (4) causes the death of more than one other person;

      (5) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or

      (6) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child. If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by  the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the  use of alcohol or a drug, or by the combined influence of drugs or of  alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.

      19

      Vehicular manslaughter in the first degree is a class C felony.

      20
      § 125.14 Aggravated vehicular homicide.
      21

      A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:

      22

      (1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;

      (2) commits such crimes while knowing or having reason to know that:

      (a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in this state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;

      (3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

      (4) causes the death of more than one other person;

      (5) causes the death of one person and the serious physical injury of At least one other person;

      (6) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or

      (7) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child.

      If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.

      23

      Aggravated vehicular homicide is a class B felony.

      24
      § 125.15 Manslaughter in the second degree.
      25

      A person is guilty of manslaughter in the second degree when:

      26

      1. He recklessly causes the death of another person; or

      2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or

      3. He intentionally causes or aids another person to commit suicide.

      27

      Manslaughter in the second degree is a class C felony.

      28
      § 125.20 Manslaughter in the first degree.
      29

      A person is guilty of manslaughter in the first degree when:

      30

      1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

      2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or

      3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or

      4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.

      31

      Manslaughter in the first degree is a class B felony.

      32
      § 125.21 Aggravated manslaughter in the second degree.
      33

      A person is guilty of aggravated manslaughter in the second degree when he or she recklessly causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.

      34

      Aggravated manslaughter in the second degree is a class C felony.

      35
      § 125.22 Aggravated manslaughter in the first degree.
      36

      A person is guilty of aggravated manslaughter in the first degree when:

      37

      1. with intent to cause serious physical injury to a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or a peace officer, he or she causes the death of such officer or another police officer or peace officer; or

      2. with intent to cause the death of a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer, he or she causes the death of such officer or another police officer or peace officer under circumstances which do not constitute murder because he or she acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to aggravated manslaughter in the first degree or manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.

      38

      Aggravated manslaughter in the first degree is a class B felony.

      39
      § 125.25 Murder in the second degree.
      40

      A person is guilty of murder in the second degree when:

      41

      1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

      (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or

      (b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or

      2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or

      3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

      (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

      (b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

      (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

      (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or

      4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or

      5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.

      42

      Murder in the second degree is a class A-I felony.

      43
      § 125.26 Aggravated murder.
      44

      A person is guilty of aggravated murder when:

      45

      1. With intent to cause the death of another person, he or she causes the death of such person, or of a third person who was a person described in subparagraph (i), (ii) or (iii) of paragraph (a) of this subdivision engaged at the time of the killing in the course of performing his or her official duties; and

      (a) Either:

      (i) the intended victim was a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or

      (ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

      (iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; and (b) The defendant was more than eighteen years old at the time of the commission of the crime; or

      2. (a) With intent to cause the death of a person less than fourteen years old, he or she causes the death of such person, and the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subdivision, "torture" means the intentional and depraved infliction of extreme physical pain that is separate and apart from the pain which otherwise would have been associated with such cause of death; and

      (b) The defendant was more than eighteen years old at the time of the commission of the crime.

      3. In any prosecution under subdivision one or two of this section, it is an affirmative defense that:

      (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the first degree, manslaughter in the first degree or any other crime except murder in the second degree; or

      (b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the second degree, manslaughter in the second degree or any other crime except murder in the second degree.

      46

      Aggravated murder is a class A-I felony.

      47
      § 125.27 Murder in the first degree.
      48

      A person is guilty of murder in the first degree when:

      49

      1. With intent to cause the death of another person, he causes the death of such person or of a third person; and

      50

      (a) Either:

      51

      (i) the intended victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was a police officer; or

      (ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

      (iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was an employee of a state correctional institution or a local correctional facility; or

      (iv) at the time of the commission of the killing, the defendant was confined in a state correctional institution or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the killing, the defendant had escaped from such confinement or custody while serving such a sentence and had not yet been returned to such confinement or custody; or

      (v) the intended victim was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced, or the intended victim had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution for such prior testimony, or the intended victim was an immediate family member of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the testimony of such witness, or the intended victim was an immediate family member of a witness who had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution upon such witness for such prior testimony. As used in this subparagraph "immediate family member" means a husband, wife, father, mother, daughter, son, brother, sister, stepparent, grandparent, stepchild or grandchild; or

      (vi) the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement; or

      (vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter; or

      (viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction; or

      (ix) prior to committing the killing, the defendant had been convicted of murder as defined in this section or section 125.25 of this article, or had been convicted in another jurisdiction of an offense which, if committed in this state, would constitute a violation of either of such sections; or

      (x) the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subparagraph, "torture" means the intentional and depraved infliction of extreme physical pain; "depraved" means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or

      (xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan; or

      (xii) the intended victim was a judge as defined in subdivision twenty-three of section 1.20 of the criminal procedure law and the defendant killed such victim because such victim was, at the time of the killing, a judge; or

      (xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; and

      52

      (b) The defendant was more than eighteen years old at the time of the commission of the crime.

      53

      2. In any prosecution under subdivision one, it is an affirmative defense that:

      54

      (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or

      (b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.

      55

      Murder in the first degree is a class A-I felony.

      56
      § 125.40 Abortion in the second degree.
      57

      A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

      58

      Abortion in the second degree is a class E felony.

      59
      § 125.55 Self-abortion in the first degree.
      60

      A female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

      61

      Self-abortion in the first degree is a class A misdemeanor.

      62
      § 125.60 Issuing abortional articles.
      63

      A person is guilty of issuing abortional articles when he manufactures, sells or delivers any instrument, article, medicine, drug or substance with intent that the same be used in unlawfully procuring the miscarriage of a female.

      64

      Issuing abortional articles is a class B misdemeanor.

    • 1.4 Model Penal Code Article 210

  • 2 III.B. Intentional Homicide

    • 2.1 III.B.i. First v. Second Degree Murder

      There are many ways to murder someone.

      Over time, Anglo-American criminal systems have come to distinguish between degrees of murder. With such a weighty crime and potentially serious punishments, the instinct to subdivide the offense according to degrees of blameworthiness seems like a reasonable way to accommodate the “proportionality principle”—the idea that crimes of different levels of blameworthiness should be treated differently. The best-known distinction between types of murder is between first- and second-degree murder.

      The line between first- and second-degree murder is supposedly clear: premeditation. As the cases in this section suggest, however, defining premeditation can be difficult, and courts have taken different approaches. As you read these cases, consider also how the distinction between first- and second-degree murder serves the goals of criminal punishment. Which is more blameworthy, and thus more deserving of punishment as a matter of retribution? Who is more dangerous, and should be incapacitated longer, or permanently? Who can be deterred—and who can’t?

      • 2.1.1 Commonwealth v. Carroll

        1
        194 A.2d 911
        2
        412 Pa. 525
        3
        COMMONWEALTH of Pennsylvania
        v.
        Donald D. CARROLL, Jr., Appellant.
        4
        Supreme Court of Pennsylvania.
        5
        Nov. 12, 1963.
        6

         

        7

        [412 Pa. 527] [194 A.2d 913] M. Barney Cohen, Harold Gondelman, Pittsburgh, for appellant.

        8

        Edward C. Boyle, Dist. Atty., George Ross, William Claney Smith, Asst. Dist. Attys., Pittsburgh, for appellee.

        9

        [412 Pa. 526] Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

        10

        [412 Pa. 527] BELL, Chief Justice.

        11

        The defendant, Carroll, pleaded guilty generally to an indictment charging him with the murder of his wife, and was tried by a Judge without a jury in the Court of Oyer and Terminer of Allegheny County. That Court found him guilty of first degree murder and sentenced him to life imprisonment. Following argument and denial of motions in arrest of judgment and for a new trial, defendant took this appeal. The only questions involved are thus stated by the appellant:

        12

        (1) 'Does not the evidence sustain a conviction no higher than murder in the second degree?

        13

        (2) 'Does not the evidence of defendant's good character, together with the testimony of medical experts, including the psychiatrist for the Behavior Clinic of Allegheny County, that the homicide was not premeditated or intentional, require[1] the Court below [412 Pa. 528] to fix the degree of guilt of defendant no higher than murder in the second degree?'

        14

        The defendant married the deceased in 1955, when he was serving in the Army in California. Subsequently he was stationed in Alabama, and later in Greenland. During the latter tour of duty, defendant's wife and two children lived with his parents in New Jersey. Because this arrangement proved incompatible, defendant returned to the United States on emergency leave in order to move his family to their own quarters. On his wife's insistence, defendant was forced first to secure a 'compassionate transfer' back to the States, and subsequently to resign from the Army in July of 1960, by which time he had attained the rank of Chief Warrant Officer. Defendant was a hard worker, earned a substantial salary and bore a very good reputation among his neighbors.

        15

        In 1958, decedent-wife suffered a fractured skull while attempting to leave defendant's car in the course of an argument. Allegedly this contributed to her mental disorder which was later diagnosed as a schizoid personality type. In 1959 she underwent psychiatric treatment at the Mental Hygiene Clinic in Aberdeen, Maryland. She complained of nervousness and told the examining doctor 'I feel like hurting my children.' This sentiment sometimes took the form of sadistic 'discipline' toward their very young children. Nevertheless, upon her discharge from the Clinic, the doctors considered her much improved. With this background we come to the immediate events of the crime.

        16

        In January, 1962, defendant was selected to attend an electronics school in Winston-Salem, North Carolina, for nine days. His wife greeted this news with violent argument. Immediately prior to his departure for Winston-Salem, at the suggestion and request of his wife, he put a loaded .22 calibre pistol on the [412 Pa. 529] window sill at the head of their common bed, so that she would feel safe. On the evening of January 16, 1962, defendant returned home and told his wife that he had been temporarily assigned to teach at a school in Chambersburg, which would necessitate his absence from home four nights out of seven for a ten [194 A.2d 914] week period. A violent and protracted argument ensued at the dinner table and continued until four o'clock in the morning.

        17

        Defendant's own statement after his arrest details the final moments before the crime: 'We went into the bedroom a little before 3 o'clock on Wednesday morning where we continued to argue in short bursts. Generally she laid with her back to me facing the wall in bed and would just talk over her shoulder to me. I became angry and more angry especially what she was saying about my kids and myself, and sometime between 3 and 4 o'clock in the morning I remembered the gun on the window sill over my head. I think she had dozed off. I reached up and grabbed the pistol and brought it down and shot her twice in the back of the head.'[2]

        18

        Defendant's testimony at the trial elaborated this theme. He started to think about the children, 'seeing my older son's feet what happened to them. I could see the bruises on him and Michael's chin was split open, four stitches. I didn't know what to do. I wanted to help my boys. Sometime in there she said something in there, she called me some kind of name. I kept thinking of this. During this time I either thought or felt--I thought of the gun, just thought of the gun. I am not sure whether I felt my hand move toward the gun--I saw my hand move, the next thing--the only thing I can recollect after that is right after [412 Pa. 530] the shots or right during the shots I saw the gun in my hand just pointed at my wife's head. She was still lying on her back--I mean her side. I could smell the gunpowder and I could hear something--it sounded like running water. I didn't know what it was at first, didn't realize what I'd done at first. Then I smelled it. I smelled blood before. * * *'

        19

        'Q. At the time you shot her, Donald, were you fully aware and intend to do what you did?

        20

        'A. I don't know positively. All I remember hearing was two shots and feeling myself go cold all of a sudden.'

        21

        Shortly thereafter defendant wrapped his wife's body in a blanket, spread and sheets, tied them on with a piece of plastic clothesline and took her down to the cellar. He tried to clean up as well as he could. That night he took his wife's body, wrapped in a blanket with a rug over it to a desolate place near a trash dump. He then took the children to his parents' home in Magnolia, New Jersey. He was arrested the next Monday in Chambersburg where he had gone to his teaching assignment.

        22

        Although defendant's brief is voluminous, the narrow and only questions which he raises on this appeal are as hereinbefore quoted. Both are embodied in his contention that the crime amounted only to second degree murder and that his conviction should therefore be reduced to second degree or that a new trial should be granted.

        23

        The applicable principles of law are well settled, but because they are so frequently misunderstood or misapplied or overlooked, we deem it wise to restate them. Many of them are set forth and reaffirmed in Commonwealth v. Gooslin, 410 Pa. 285, pages 286, 288, 289, 189 A.2d 157, 158, where the Court said:

        24

        '* * * 'Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. 'Murder', * * * 'is defined as an [412 Pa. 531] unlawful killing of another with malice aforethought, express or implied.' The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate [and] premeditated killing, or any murder which shall be [194 A.2d 915] committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping],[3] is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of 1939, June 24, supra.[4]

        25

        "Malice express or implied is [the hallmark] the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Malice is present if the defendant had an intent to do the deceased serious bodily harm: Commonwealth v. Drum, supra; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125]. * * *

        26

        "'The test of the sufficiency of the evidence--irrespective of whether it is direct or circumstantial--is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, * * *. [citing numerous authorities].

        27

        "'* * * 'It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon his own testimony or that [412 Pa. 532] of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, 'we accept as true all of the Commonwealth's evidence upon which, if believed, the jury could have properly based its verdict. [citing numerous authorities].''"'

        28

        'In Commonwealth v. Kravitz, 400 Pa. 198, page 208, 161 A.2d 861, page 865, the Court said: "'* * * Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. '* * * It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt. [citing numerous authorities].'""

        29

        In Commonwealth v. Tyrrell, 405 Pa. 210, pages 212-213, 174 A.2d 852, 853, the Court said: 'The essential difference in a non-felony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires a specific intent to take the life of another human being. Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Dorazio, 365 Pa. [291, 74 A.2d 125] supra; Commonwealth v. Malone, 354 Pa. [180, 47 A.2d 445] supra; Commonwealth v. Chapman, 359 Pa. 164, 58 A.2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.'

        30

        The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth [412 Pa. 533] v. Moore, 398 Pa. 198, 157 A.2d 65; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317.

        31

        [194 A.2d 916] It is well settled that a jury or a trial Court can believe all or a part of or none of a defendant's statements, confessions or testimony, or the testimony of any witness: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728; Commonwalth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 supra; Commonwealth v. Donough, 377 Pa. 46, 50, 103 A.2d 694; Commonwealth v. Homeyer, 373 Pa. 150, 153, 94 A.2d 743; Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455; Commonwealth v. Shults, 221 Pa. 466, 70 A. 823.

        32

        It we consider only the evidence which is favorable to the Commonwealth, it is without the slightest doubt sufficient in law to prove first degree. However, even if we believe all of defendant's statements and testimony, there is no doubt that this killing constituted murder in the first degree. Defendant first urges that there was insufficient time for premeditation in the light of his good reputation. This is based on an isolated and oft repeated statement in Commonwealth v. Drum, 58 Pa. 9, 16, that "no time is too short for a wicked man to frame in his mind the scheme of murder." Defendant argues that, conversely, a long time is necessary to find premeditation in a 'good man.' We find no merit in defendant's analogy or contention. As Chief Justice MAXEY appropriately and correctly said in Commonwealth v. Earnest, 342 Pa. 544, pages 549-550, 21 A.2d 38, page 40: 'Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, wilful, deliberate and premeditated. * * * As Justice Agnew said in Com. v. Drum: 'The law fixes upon [412 Pa. 534] no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.''

        33

        Defendant further contends that the time and place of the crime, the enormous difficulty of removing and concealing the body, and the obvious lack of an escape plan, militate against and make a finding of premeditation legally impossible. This is a 'jury argument'; it is clear as crystal that such circumstances do not negate premeditation. This contention of defendant is likewise clearly devoid of merit.

        34

        Defendant's most earnestly pressed contention is that the psychiatrist's opinion of what defendant's state of mind must have been and was at the time of the crime, clearly establishes not only the lack but also the legal impossibility of premeditation. Dr. Davis, a psychiatrist of the Allegheny County Behavior Clinic, testified that defendant was 'for a number of years * * * passively going along with a situation which he * * * [was] not controlling and he * * * [was] not making any decisions, and finally a decision * * * [was] forced on him * * *. He had left the military to take this assignment, and he was averaging about nine thousand a year; he had a good job. He knew that if he didn't accept this teaching assignment in all probability he would be dismissed from the Government service, and at his age and his special training he didn't know whether he would be able to find employment. More critical to that was the fact that at this point, as we understand it, his wife issued an ultimatum that if he went and gave this training course she would leave him * * *. He was so dependent upon her he didn't want her to leave. He couldn't make up his mind what to do. He was trapped * * *.'

        35

        The doctor then gave his opinion that 'rage', 'desperation', and 'panic' produced 'an impulsive automatic [412 Pa. 535] reflex type of homicide, * * * as opposed to an intentional premeditated type of homicide. * * * Our feeling was that if this gun had fallen to the floor he wouldn't have been able to pick it up and consummate that homicide. And I think if he had to load the [194 A.2d 917] gun he wouldn't have done it. This is a matter of opinion, but this is our opinion about it.'

        36

        There are three answers to this contention. First, as we have hereinbefore stated, neither a Judge nor a jury has to believe all or any part of the testimony of the defendant or of any witness. Secondly, the opinion of the psychiatrists was based to a large extent upon statements made to them by the defendant, which need not be believed and which are in some instances opposed by the facts themselves. Thirdly, a psychiatrist's opinion of a defendant's impulse or lack of intent or state of mind is, in this class of case, entitled to very little weight, and this is especially so when defendant's own actions, or his testimony or confession, or the facts themselves, belie the opinion.

        37

        The rule regarding the weight of expert testimony in this class of case is well settled. '* * * '[E]xpert testimony is entitled to little weight as against positive facts. Expert medical opinions are especially entitled to little or no weight when based upon insufficient or (partly) erroneous facts or a feigned state of mind or an inaccurate past history, or upon unreasonable deductions, * * *.' [Commonwealth v. Gossard, 385 Pa. 312, 123 A.2d 258; Commonwealth v. Patskin, 375 Pa. 368, 375, 100 A.2d 472]' Commonwealth v. Jordan, 407 Pa. 575, 583, 181 A.2d 310, 314.

        38

        In Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98, we held that the jury was free to disregard expert psychiatric testimony that defendant was insane at the time of commission of the killing,--which would have acquitted the defendant under the M'Naghten Rule--in the face of testimony by lay witnesses [412 Pa. 536] who actually observed him and considered him to be sane at times when he was allegedly insane. Mr. Justice EAGEN, speaking for the Court, said (pages 259-260 of 401 Pa., page 107 of 164 A.2d): '* * * '* * * It must be kept in mind that an opinion is only an opinion. It creates no fact. Because of this, opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts such as statements by the defendant and observations of his actions.'' See to the same effect: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728, supra; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287, supra.

        39

        Defendant's own statement after his arrest, upon which his counsel so strongly relies, as well as his testimony at his trial, clearly convict him of first degree murder and justify the finding and sentence of the Court below. Defendant himself described his actions at the time he killed his wife. From his own statements and from his own testimony, it is clear that, terribly provoked by his allegedly nagging, belligerent and sadistic wife,[5] defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife. There is no doubt that this was a wilful, deliberate and premeditated murder.

        40

        While defendant makes no contention that he was insane at the commission of the murder or at any time, what this Court said in Commonwealth v. Tyrrell, supra, 405 Pa. 210, pages 220-221, 174 A.2d 852, pages 856-857[6] is equally appropriate here:

        41

        'Defendant's psychiatrist did not testify that the defendant was insane. What he did say was that because defendant's wife frequently picked on him and just before the killing insulted or goaded him, defendant [412 Pa. 537] had an emotional impulse to kill her which he could not resist.

        42

        '* * * society would be almost completely unprotected from criminals if the [194 A.2d 918] law permitted a blind or irresistible impulse or inability to control one's self, to excuse or justify a murder or to reduce it from first degree to second degree. In the times in which we are living, nearly every normal adult human being has moments or hours or days or longer periods when he or she is depressed and disturbed with resultant emotional upset feelings and so-called blind impulses; and the young especially have many uncontrolled emotions every day which are euphemistically called irresistible impulses. The Courts of Justice should not abdicate their function and duty of determining criminal responsibility to the psychiatrist. In such event, the test will differ not only with each psychiatrist but also with the prevailing psychiatric winds of the moment. "* * * Only a short time ago that concept [of irresistible impulse] was emphatically presented as an example of the 'uniform' opinion of psychiatrists on criminal responsibility; and yet today, 'irresistible impulse' is rejected by most psychiatrists as unsound * * *' [Professor] Hall, 'Psychiatry and Criminal Responsibility,' 65 Yale L.J. 761, 762 (1956).' State of New Jersey v. Lucas, 30 N.J. 37, 152 A.2d 50, 68.'

        43

        Just as the Courts cannot abdicate to the psychiatrists the task of determining criminal responsibility in law, so also they cannot remit to psychiatrists the right to determine the intent or the state of mind of an accused at the time of the commission of a homicide.

        44

        Since this is a case of murder, we have carefully reviewed the record.[7] It is crystal clear, from the record, [412 Pa. 538] that defendant was justifiably convicted of murder in the first degree.

        45

        Judgment and sentence affirmed.

        46

        JONES and COHEN, JJ., concur in the result.

        47

        ---------------

        48

        [1] Italics throughout, ours.

        49

        [2] When pressed on cross-examination defendant approximated that five minutes elapsed between his wife's last remark and the shooting.

        50

        [3] Also where death results from the malicious wrecking of a train. Act of June 24, 1939, P.L. 872, § 919, 18 P.S. § 4919.

        51

        [4] P.L. 872, as amended, § 701, 18 P.S. § 4701.

        52

        [5] While this picture of his wife is different from that depicted by her neighbors, if defendant's version is true, the remedy lies in a commutation by the Board of Pardons and not by a disregard of the law by the Courts.

        53

        [6] In the body of the Opinion and in the footnote.

        54

        [7] As required by the Act of February 15, 1870, P.L. 15, 19 P.S. § 1187.

        55

         

      • 2.1.2 State. v. Guthrie

        1
        461 S.E.2d 163 (1995)
        2
        194 W.Va. 657
        3
        STATE of West Virginia, Plaintiff Below, Appellee,
        v.
        Dale Edward GUTHRIE, Defendant Below, Appellant.
        4
        No. 22710.
        5

        Supreme Court of Appeals of West Virginia.

        6
        Submitted May 10, 1995.
        7
        Decided July 19, 1995.
        8
        Concurring Opinion of Justice Workman, July 21, 1995.
        9

         

        10

        [171] Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.

        11

        Stephen D. Warner, Deputy Public Defender, Charleston, for appellant. [164] [165] [166] [167] [168] [169]

        12

        [170] CLECKLEY, Justice:

        13

        The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.

        14
        I. FACTS AND PROCEDURAL BACKGROUND
        15

         

        16

        It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.

        17

        The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.[1] The police officers [172] described him as calm and willing to cooperate.

        18

        It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.

        19

        The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.

        20

        In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.

        21

        A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.

        22

        It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.

        23
        II. DISCUSSION
        24

         

        25

        In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below. [173]

        26

         

        27
        A. Sufficiency of the Evidence
        28

         

        29

        First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.

        30

        We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:

        31
        "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."
        32

         

        33

        A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),[2] articulated, at least linguistically, a different standard of review under the United States Constitution.[3] In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).

        34

        After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.[4] By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.[5] This standard is a strict one; a [174] defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.

        35

        Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

        36

        In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:

        37
        "[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction."
        38

         

        39

        State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).

        40

        However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:

        41
        "The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions,... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....
        42
        "Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." (Citations omitted).
        43

         

        44

        The circumstantial evidence rule of Holland was reaffirmed in Jackson:

        45
        "Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today." 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).
        46

         

        47

        Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 [175] N.E.2d 492, 502 (1991),[6] relying on the language in Holland, the Ohio court stated:

        48
        "Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder."
        49

         

        50

        These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.[7] Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.[8]

        51

        In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.[9] Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evidence, [176] regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant's claims.

        52

        We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case—those that the jury was unquestionably entitled to find—are rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.[10] In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.

        53

        There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.[11]

        54

        The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.

        55

        After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations [177] in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.

        56
        B. Jury Instructions
        57

         

        58

        The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."

        59

        The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.

        60
        1. Standard of Review
        61

         

        62

        The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.[12] Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review.[13] More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):

        63
        "The court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion."
        64

         

        65

        Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken [178] as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.[14] So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.

        66
        2. Adequacy of Jury Instructions as to the Elements of First Degree Murder
        67

         

        68

        The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."[15] This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.[16] More precisely, the defendant asserts the trial court's instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.[17]

        69

        The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"[18] In its effort to define these terms, the trial court gave three instructions.[19] State's Instruction No. 8, commonly referred to as the Clifford instruction, stated:

        70
        "The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously."
        71

         

        72

        See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:

        73

        [179] "The Court instructs the jury that in order to constitute a `premeditated' murder an intent to kill need exist only for an instant." State's Instruction No. 12 stated: "The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional." State's Instruction Nos. 10 and 12 are commonly referred to as Schroder instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).

        74

        The linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.

        75

        At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an `arbitrary symbol' used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.[20] It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute.[21]

        76

        The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).

        77

        In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:

        78

        "`The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction.'" (Emphasis added to last sentence).

        79

        In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to [180] the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:

        80
        "The terms `deliberate' and `premeditated' have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law§ 73, at 563 (1972 ed.):

        "`To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.' (Footnotes omitted)

        "But, as LaFave & Scott also point out: `The intention may be finally formed only as a conclusion of prior premeditation and deliberation.' Id." 169 W.Va. at 200-01, 286 S.E.2d at 409.
        81

         

        82

        Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:

        83
        "Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection." 169 W.Va. at 201, 286 S.E.2d at 409.
        84

         

        85

        This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.

        86

        The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:

        87
        "Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of `premeditated' as used in the statute was essentially `knowing' and `intentional.' Since then, courts have consistently recognized that the mental process necessary to constitute `willful, deliberate and premeditated' murder can be accomplished very quickly or even in the proverbial `twinkling of an eye.' ... The achievement of a, mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language `willful, deliberate and premeditated' in W.Va. Code, 61-2-1 [1923] is that the killing be intentional" 172 W.Va. at 6, 302 S.E.2d at 75. (Emphasis added).
        88

         

        89

        The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.

        90

        While many jurisdictions do not favor the distinction between first and second degree murder,[22] given the doctrine of separation of [181] powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the law—a bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schroder definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came "into existence for the first time at the time of such killing" completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.

        91

        Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder`s notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:

        92
        "To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous."
        93

         

        94

        Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.[23] This is what [182] is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.[24]

        95

        We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled. In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:

        96
        "Remaining true to an `intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation `special justification' exists to depart from the recently decided case." Adarand Constr., Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158, 185 (1995).
        97

         

        98

        Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.

        99

        Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:

        100
        "A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions§ 41.03, at 214, is:

        "`The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he [183] intended, is sufficient to support a conviction for first degree murder.'"

        101

         

        102

        Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.

        103

        As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.

        104
        C. Misconduct of the Prosecuting Attorney
        105

         

        106

        We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.[25] See McDougal v. McCammon, 193 W.Va. 229, 239, 455 S.E .2d 788, 798 (1995).

        107
        1. Disclosing the Possible Penalties
        108

         

        109

        During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.

        110

        The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.

        111

        Both parties to this appeal seem to acknowledge that our cases are not entirely [184] consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the case sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State's Instruction No. 11 that stated, in part:

        112
        "[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release."
        113

         

        114

        The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.[26] See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) and 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988).

        115

        The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).[27]

        116

        [185] Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.[28]

        117

        We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:

        118
        "In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct.The same cannot be said with reference to the court's treatment of the Prosecutor's remark:

        "`When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.'"

        159 W.Va. at 362, 222 S.E.2d at 306.

        119

         

        120

        The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.[29] In short, we believe that the Court's discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.

        121

        Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."

        122

        It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.

        123
        2. Questions Relating to the Defendant's Prejudices
        124

         

        125

        During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with [186] the women on the jury and the one African-American juror.

        126

        The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.[30] The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.[31] Nevertheless, a curative instruction was not requested by either party and none was given.

        127

        Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility [187] of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.

        128

        Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:

        129
        "Although Mr. Perrill referred to Dr. Arrieta as `the colored lady' only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. `To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.' McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979)."
        130

         

        131

        The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.[32]

        132

        Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.

        133

        The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.[33] Quite clearly, evidence that the defendant was a "Bible-reading man" and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant's reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.[34] This issue is in this case only because [188] the prosecution chose not to object to the inadmissible evidence.[35] Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.

        134

        The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc., 262 N.W.2d 377, 387 (Minn.1977), stated:

        135
        "In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence."[36] (Footnote omitted).
        136

         

        137

        We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.

        138

        The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause—unfair prejudice, confusion, misleading the jury, delay, or repetition—and to exclude the evidence if the probative value is "substantially outweighed" by the harm.

        139

        Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance [189] in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant's guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:

        140
        "We have defined undue prejudice as `"a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.'"...
        141
        "... When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion." (Citations omitted).
        142

         

        143

        The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).[37]

        144

        Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.

        145

        Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.

        146

        To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. [190] Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant's dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),[38] it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factors—race, religion, gender, political ideology—when prohibited by our laws shall not play any role in our system of criminal justice.

        147
        3. Harmless Error Standard
        148

         

        149

        Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.

        150

        The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court[39] is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.

        151

        In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an [191] improper statement that the defendant was guilty and urged the jury to "do its job").

        152

        Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti, 729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).[40] Therefore, we will reverse if we conclude that the prosecutor's conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.

        153

        In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.[41] These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.

        154

        However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.[42] The defendant [192] argues the State's nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:

        155

        "`When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."

        156

         

        157

        See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.[43] We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E .2d 616 (1992), states:

        158

        "`Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."

        159
         
        160
        III. CONCLUSION
        161

         

        162

        In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."[44] For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution's failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant's constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.[45]

        163

        Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.

        164

        Reversed and remanded.

        165

        [193] BROTHERTON and RECHT, JJ., did not participate.

        166

        MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.

        167

        WORKMAN, J., concurs and reserves the right to file a concurring opinion.

        168

        WORKMAN, Justice, concurring:

        169

        I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion[1] affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority's recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.

        170

        I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection[2] and contemplation.[3] The majority's interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield and Dodds cases that the majority upholds. See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).

        171

        For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:

        172

        "`"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."`"

        173

        169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."

        174

        Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is, [194] lapses] between the forming of the intent to kill and the execution of that intent[.]" See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).

        175

        [1] The confession, which was read to the jury, stated, in part:

        176

        "I arrived at work, at 4:00 o'clock, and was looking forward to another evening of work, I was looking forward to it, because I do enjoy working at Danny's Rib House. Upon my arrival at work I immediately observed the verbal and physical aggression of Mr. Farley. During the evening of work I heard him calling certain employee's `Boy' and during the evening he referred to me as `Boy' many times, I did and said nothing, continuing my work, letting it pass. He was really loud, and obnoxious, as I'm sure many employee's noticed. As the evening was coming to a close Mr. Farley walked very close by me and said `that I had an "attitude problem."` It was verbal, I let it pass, continuing my work. After bringing some dishes to the cook, I walked back to the dishwasher to begin drying off some dishes, Mr. Farley approached me and made a sarcastic comment about me being a quiet person, he walked ever closer, to me until he was in my face, as I was trying to carry out my responsibilities. After all these things were said, and even though he was exhibiting physical aggression by coming up to my face, and putting forth what I interpreted to be a challenge, again I did nothing, continuing to carry out my responsibilities. Standing a few inches from my face he took his wet dishrag and hit me once, on the forearm, I did nothing continuing my work. Standing in the same area, he hit me again on the forearm, obviously wanting a confrontation, I gave him none, continuing my work. Standing in the same place he hit me, hard, two times in the face, it really hurt, it was soaking wet, and it stung, as he brought it to bear upon my face, at that moment I thought he was going to go further and hit me, so I reached in my right pants pocket, and retrieved my lock blade knife, that I use for skinning rabbits and squirrells [sic] during hunting season. I swung at Mr. Farley with my right hand in which was my knife, he backed up, so I didn't swing twice, he slowly sunk to [the] floor, I ran to the front of the restaurant and yelled out, call the ambulance. All I came to work for, was to work, and carry out my obligations, having ill will toward no one, and I still have none, but I feel I had the right to respond, finally, to this act of aggression that was perpetrated against me, I do not exhibit aggressive, violent behavior but I felt I had no alternative, or recourse."

        177

         

        178

        [2] Rehearing denied by 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

        179

        [3] There is some question as to whether Jackson reflects the current thinking of the United States Supreme Court. In the practical context, Jackson was a five-to-three decision; every member of the majority is gone from the Supreme Court; and the concurring trio. Justice Stevens joined by Chief Justice Burger and Justice Rehnquist, argued for a standard that asked whether there was some evidence to support the disputed finding. Since both opinions in Jackson held the evidence was adequate to convict, the choice between the two calibrations of the standard did not matter in that case. Also, neither of the two sequels to Jackson is illuminating. Herrera v. Collins, ___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (the majority opinion by Chief Justice Rehnquist capsulized Jackson solely in order to distinguish it); Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (involved a fractured Supreme Court with no majority opinion).

        180

        While we are not certain as to how the United States Supreme Court will ultimately resolve this issue, the majority position in Jackson represents the pole most favorable to the defendant, and this stated position of the majority of justices has never been overruled. Accordingly, we proceed to consider whether on the record made in the trial court any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

        181

        [4] The reconciliation that we choose to do is consistent with a similar approach we took in State v. Kopa, 173 W.Va. 43, 49, 311 S.E.2d 412, 418 (1983), where we observed that adopting a different standard in criminal cases might "create the problem of sustaining convictions in the state court with predictable release through habeas corpus in the federal court." Although the two standards would not necessarily lead to different results, we believe it is unnecessary to have a criminal defendant subjected to different standards of review should the case ultimately end up in federal court. See York v. Tate, 858 F.2d 322 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989).

        182

        [5] While the language in Jackson seems to support a de novo review, see 443 U.S. at 324-26, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 577-78, the review is only de novo as to decisions made by the trial court. As to the jury's verdict, we are required to review all inferences in favor of the verdict, thus making deferential review appropriate.

        183

        [6] Rehearing denied by 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991).

        184

        [7] See State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

        185

        [8] Our conviction that the Holland rule is the better rule is not weakened by the fact that there is substantial conflict among the states as to whether the standard announced in Noe is preferable to that of Holland. According to our rough count, for states following the Noe rule, see Ex parte Williams, 468 So.2d 99 (Ala. 1985); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), cert. denied, ___ U.S. ___, 113 S.Ct. 1331, 122 L.Ed.2d 716 (1993); Murdix v. State, 250 Ga. 272, 297 S.E.2d 265 (1982); State v. Lilly, 468 So.2d 1154 (La. 1985); State v. Andrews, 388 N.W.2d 723 (Minn. 1986); State v. Easley, 662 S.W.2d 248 (Mo.1983); State v. Williams, 657 S.W.2d 405 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); State v. John, 586 P.2d 410 (Utah 1978); State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985). For states rejecting the Noe rule, see Des Jardins v. State, 551 P.2d 181 (Alaska 1976); State v. Harvitt, 106 Ariz. 386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del. 1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Finke v. State, 56 Md.App. 450, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (Md.1984), cert. denied sub num. Finke v. Maryland, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984); People v. Johnson, 146 Mich.App. 429, 381 N.W.2d 740 (1985); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989).

        186

        [9] An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. State v. Bailey, supra. It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses.

        187

        [10] On cross-examination, the prosecuting attorney asked the defendant if, upon learning of the victim's death, he replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" This Court does not suggest this evidence should have been admitted. However, when reviewing a sufficiency of the evidence claim, an appellate court is entitled to review all the evidence that was actually admitted rightly or wrongly. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

        188

        [11] The evidence shows the victim's actions were irritating to the defendant well before the stabbing took place. His anger was building with each comment and flip of the towel. Furthermore, witnesses testified the defendant attempted to stab the victim a second time as he fell to the ground. The evidence shows the victim was slashed in the arm during this attempt. Finally, the defendant's statement that he "had the right to respond, finally, to this act of aggression that was perpetrated against [him]" is considered probative evidence of premeditation and deliberation.

        189

        [12] Generally, we review a trial court's refusal to give or the actual giving of a certain instruction under an abuse of discretion standard. Where, however, the question is whether the jury instructions failed to state the proper legal standard, this Court's review is plenary. "Whether jury instructions were properly [legally] given is a question of law[.]" U.S. v. Morrison, 991 F.2d 112, 116 (4th Cir.1993).

        190

        [13] In connection with a review of the legal sufficiency of the instructions, if we were to determine, as the State urges, that the defendant did not object to one or more of the trial court's instructions regarding the legal standard, we would review its legal propriety under a "plain error" standard. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Miller, we suggested that where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute "plain error."

        191

        [14] In Syllabus Point 8 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we stated:

        192

        "`When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."

        193

         

        194

        [15] Furthermore, we have stated on different occasions that "[t]he jury is the trier of the facts and `there is no presumption that they are familiar with the law.'" State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 739 (1977), quoting State v. Loveless, 139 W.Va. 454, 469, 80 S.E.2d 442, 450 (1954).

        195

        [16] The defendant raises several other assignments of error regarding the jury instructions, but we find his arguments without merit.

        196

        [17] A form of this argument was made to this Court before when similar instructions were challenged and we found the contention to be without merit. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982); State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Actually only Schrader deals with the exact issue raised sub judice. For purposes of convenience, we will refer to instructions regarding the length of time necessary to form an intent to kill as the Clifford instruction, see State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), and those equating the intent to kill with premediation as the Schrader instruction.

        197

        [18] As to the other offenses, the jury instruction stated:

        198

        "[M]urder in the second degree is when one person kills another person unlawfully and maliciously, but not deliberately or premeditatedly; that voluntary manslaughter is the intentional, unlawful and felonious but not deliberate or malicious taking of human life under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person, or when engaged in a lawful act unlawfully causes the death of another person."

        199

         

        200

        [19] We note that defense counsel did not object to State's Instruction No. 8, and, under our standard of review, the instruction would ordinarily be reviewed only for "plain error."

        201

        [20] The 1794 Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree[.]" 1794 Pa.Laws, Ch. 1766, § 2, quoted in Commonwealth v. Jones, 457 Pa. 563, 570-71, 319 A.2d 142, 147 (1974).

        202

        [21] W.Va.Code, 61-2-1, states, in part:

        203

        "Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the first degree. All other murder is murder of the second degree."

        204

         

        205

        [22] The Model Penal Code and many of the modern state criminal codes abolish the first and second degree murder distinction in favor of classifications based on more meaningful criteria. Interestingly, defining premeditation in such a way that the formation of the intent to kill and the killing can result from successive impulses, see Schrader, supra (intent equals premeditation formula), grants the jury complete discretion to find more ruthless killers guilty of first degree murder regardless of actual premeditation. History teaches that such unbridled discretion is not always carefully and thoughtfully employed, and this case may be an example. In 1994, the Legislature raised the penalty for second degree murder to ten-to-forty years (from five-to-eighteen years), making it less important to give juries the unguided discretion to find the aggravated form of murder in the case of more ruthless killings, irrespective of actual premeditation. The penalties are now comparable.

        206

        [23] In the absence of statements by the accused which indicate the killing was by prior calculation and design, a jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its condition at the time of the homicide; whether plan or preparation existed either in terms of the type of weapon utilized or the place where the killing occurred; and the presence of a reason or motive to deliberately take life. No one factor is controlling. Any one or all taken together may indicate actual reflection on the decision to kill. This is what our statute means by "willful, deliberate and premeditated killing."

        207

        [24] As examples of what type of evidence supports a finding of first degree murder, we identify three categories: (1) "planning" activity—facts regarding the defendant's behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design. The California courts evidently require evidence of all three categories or at least extremely strong evidence of planning activity or evidence of category (2) in conjunction with either (1) or (3). See People v. Anderson. 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). These examples are illustrative only and are not intended to be exhaustive.

        208

        [25] The inquiry focuses on the fairness of the trial and not the culpability of the prosecutor because allegations of prosecutorial misconduct are based on notions of due process. In determining whether a statement made or evidence introduced by the prosecution represents an instance of misconduct, we first look at the statement or evidence in isolation and decide if it is improper. If it is, we then evaluate whether the improper statement or evidence rendered the trial unfair. Several factors are relevant to this evaluation, among them are: (1) The nature and seriousness of the misconduct; (2) the extent to which the statement or evidence was invited by the defense; (3) whether the statement or evidence was isolated or extensive; (4) the extent to which any prejudice was ameliorated by jury instructions; (5) the defense's opportunity to counter the prejudice; (6) whether the statement or evidence was deliberately placed before the jury to divert attention to irrelevant and improper matters; and (7) the sufficiency of the evidence supporting the conviction. See generally Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

        209

        [26] We note the defendant is likewise prohibited from informing the jury of the possible sentences he may face if convicted. See generally U.S. v. Chandler, 996 F.2d 1073 (11th Cir.1993); Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993).

        210

        [27] A proper closing argument in a criminal case involves the summation of evidence, any reasonable inferences from the evidence, responses to the opposing party's argument, and pleas for law enforcement generally. See Coleman v. State, 881 S.W.2d 344 (Tex.Cr.App.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995).

        211

        [28] Precedent does not cease to be authoritative merely because counsel in a later case advances a new argument. See generally Matter of Penn Central Transp. Co., 553 F.2d 12 (3rd Cir.1977). But, as a practical matter, a precedent-creating opinion that contains no extensive analysis of an important issue is more vulnerable to being overruled than an opinion which demonstrates that the court was aware of conflicting decisions and gave at least some persuasive discussion as to why the old law must be changed.

        212

        [29] It appears the Court in Myers was under the assumption that a trial court had authority to instruct generally on the penalties in criminal cases. No authority is cited for that proposition, and we know of none to support such a sweeping statement.

        213

        [30] The transcript reveals the following exchange between the prosecuting attorney and the defendant's father:

        214

        "Q. When you all would have these discussions, political, all kinds of discussions, did he ever tell you that women should be in the home and that men were better than women?

        "A. No.

        "Q. You never heard him say that, never heard him comment on that?

        "A. No.

        "Q. Did you ever hear him comment that whites are better than blacks?

        "MR. CLINE: Objection, Your Honor. Move to approach the bench.

        "A. No, he did not.

        "THE COURT: Just a moment. Let's not get into those areas. I don't think they're needed. I don't recall any blacks being involved in this case.

        * * * * * *

        "(Conference at the bench)

        "MR. BROWN: This is the psychological report.

        "THE COURT: Is this Smith's report?

        "MR. BROWN: Yes. Here's the quote right here (indicating). This is where they talked about all kinds of things and where he alluded to the blacks and the KKK and—

        "THE COURT: Well, I agree; but don't get into it. I agree that they talked about Hitler and blacks and things of that nature. I don't want that crap in here.

        * * * * * *

        "MR. BROWN: Let me explain. They're portraying this guy as a nice, calm, Bible reading man, takes long walks in the woods, a nice young man. And that's not what we really have here. What we have is a bigoted, prejudiced individual. And I've got witnesses who will testify to that. We've got a witness up here now who's trying to say he's a nice guy, quiet, and they're very serious people.

        "THE COURT: I'll let you get it in through Smith.

        * * * * * *

        "... You can ask him if he ever talked about blacks, talked about—Knock it off there.

        * * * * * *

        "... Yes, you can bring back Smith and Gibson.

        "MR. CLINE: Note our objection and exception for the record.

        "MR. WARNER: Judge, before he brings it up we want to be heard at the bench or out of the hearing of the jury specifically on that issue, just what they've got, which are statements someone told to him, nothing to do with this crime. It has nothing to do with this crime, and it's highly prejudicial because it's—

        * * * * * *

        "(In open court)

        "Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?

        "A. Not discussions, no.

        "Q. Did you ever hear him express views on the Klu [sic] Klux Klan?

        "A. From the news that he has heard on TV.

        "Q. Did you ever hear him express any opinion about Hitler?

        "A. No."

        215

        [31] We consider the purpose of the prosecution's cross-examination was to impeach the witness by confronting him with information about his son that was inconsistent with the witness's testimony on direct examination. We note the prosecution made no effort to introduce the testimony of Dr. Smith. In this connection, however, it is well settled that a party may not present extrinsic evidence of specific instances of conduct to impeach a witness on a collateral matter. See W.Va.R.Evid. 608(b). A matter is considered noncollateral if "the matter is itself relevant in the litigation to establish a fact of consequence[.]" 1 McCormick On Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

        216

        [32] There is a plethora of authority supporting the notion that matters such as race, religion, and nationality should be kept from a jury's consideration. See Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946), where counsel for the plaintiff made reference to the defendant's religion and foreign nationality. This Court reversed stating "[t]hese matters, of course, were not pertinent to the matters in issue and had no place in the argument." 129 W.Va. at 263, 40 S.E.2d at 10. With uniform regularity, we have held that counsel should not be permitted to appeal to the jury's passions or prejudices. See generally Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); State v. Summerville, 112 W.Va. 398, 164 S.E. 508 (1932); Hendricks v. Monongahela West Penn Public Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932); State v. Hively, 108 W.Va. 230, 150 S.E. 729 (1929).

        217

        [33] The prosecution chose not to rebut evidence of the defendant being quiet or peaceful, which was permitted under Rule 404(a)(1), Rule 404(a)(2), and/or Rule 405.

        218

        [34] Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

        219

        [35] Although we recognize that the scope and extent of cross-examination lie within the discretion of the trial court, we believe it is important to underscore the principle of evidentiary law that no party has a right on cross-examination to offer irrelevant and incompetent evidence. See Doe v. U.S., 666 F.2d 43 (4th Cir.1981). The United States Supreme Court has noted that even the right to cross-examine witnesses may, in an appropriate case, "bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973). We believe Rule 403 is one of those "other legitimate interests."

        220

        [36] Professor McCormick addressed the question as to how the curative admissibility rule is triggered: "If the [irrelevant] evidence ... is so prejudice-arousing that an objection or motion to strike cannot have erased the harm, then it seems that the adversary should be entitled to answer it as of right." McCormick on Evidence § 57 at 84 (4th ed. 1992). Certainly, any prejudice flowing from the father's testimony could have been cured by a motion to strike and by an instruction to disregard.

        221

        [37] Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Fed.R.Evid. 403. Succinctly stated, evidence is unfairly prejudicial if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 403[03] at 403-15 to 403-17 (1978).

        222

        [38] Cert. denied sub nom. Hasting v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Williams v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Anderson v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Stewart v. U.S., 469 U.S. 1218, 105 S.Ct. 1200, 84 L.Ed.2d 343 (1985).

        223

        [39] See State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

        224

        [40] In O'Neal, the Supreme Court quoted with approval the following test of harmless error from the earlier case of Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566-67 (1946):

        225

        "If, when all is said and done, the [court] ... is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand[.] ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

        226

         

        227

        [41] The only purpose this evidence could serve would be to prejudice the jury against the defendant. The defendant advises that at least one of the jurors was an African-American.

        228

        "It does not take much imagination to understand how such grossly biased comments would be viewed by the jury. We need not know the racial composition of the jury, for nearly all citizens find themselves repelled by such blatantly racist remarks and resentful of the person claimed to have uttered them." U.S. v. Ebens, 800 F.2d 1422, 1434 (6th Cir. 1986).

        229

        [42] A recess was held at the close of the defendant's cross-examination. Out of the presence of the jury, defense counsel moved for a mistrial:

        230

        "MR. WARNER: Your Honor, first of all, right before we closed, the Prosecutor cross examined my client on an alleged prior statement that he had made while sitting in the back of the police cruiser, immediately following the time that he apparently knew the person had died. The Prosecutor cross examined him, `Didn't you say something to the effect, "Isn't that too bad",' or that type of statement.

        "THE COURT: I think he said, `Isn't that too bad. Do you think it will snow', or something like that.

        * * * * * *

        "MR. WARNER: Now that my thoughts are more clear, that statement was never, ever disclosed to us. I don't know if there is any foundation in fact for that statement at all. And I think it was terribly prejudicial at the same time. If I'm wrong on any of those points, the Prosecutor can correct me. And I would move for a mistrial based on that.

        "MR. MORRIS: Judge, as I understood, that question was more or less a rebuttal question. He denied it. We are not able to prove by extraneous evidence anything he denies. That's pretty much—

        "THE COURT: I think it was proper cross examination. The record will reflect what is in the transcript. Motion for a directed verdict [mistrial] is denied. I'll note your objection and exception."

        231

        Trial courts should preclude questions for which the questioner cannot show a factual and good faith basis. See generally State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987). Manifestly, mere inquiries by the prosecutor as to rumors may be highly prejudicial even though answered in the negative.

        232

        [43] Actually, this is not a real case of late disclosure; it is a case of no meaningful disclosure. From reading the record, it appears the first time this statement was disclosed was during cross-examination. At the very least, the prosecution should have approached the bench and revealed the existence of the statement before using it in the cross-examination of the defendant.

        233

        [44] E.E.O.C. v. Steamship Clerks Union Local 1066, 48 F.3d 594, 610 (1st Cir. 1995).

        234

        [45] "This is as it should be. Such ... will serve to justify trust in the prosecutor as `the representative... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Kyles v. Whitley, ___ U.S. ___, ___, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490, 509 (1995), quoting Berger v. U.S., 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).

        235

        [1] The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W.Va. at 202, 286 S.E.2d at 410 n. 7.

        236

        [2] The word "reflect" is defined by Webster's as "to think quietly and calmly."

        237

        [3] The word "contemplate" is defined by Webster's as "to view or consider with continued attention."

      • 2.1.3 State v. Brown

        1
        836 S.W.2d 530 (1992)
        2
        STATE of Tennessee, Appellee,
        v.
        Mack Edward BROWN, Appellant.
        3

        Supreme Court of Tennessee, at Knoxville.

        4
        June 1, 1992.
        5
        Rehearing denied August 3, 1992.
        6

         

        7

        [533] Randall E. Reagan, Leslie A. Nassios, Knoxville, for appellant.

        8

        Charles W. Burson, Atty. Gen. and Reporter, James W. Milam, Asst. Atty. Gen., Nashville, for appellee.

        9
        OPINION
        10

         

        11

        DAUGHTREY, Justice.

        12

        This capital case arose from the death of four-year-old Eddie Eugene Brown and the subsequent conviction of his father for first-degree murder, as well as for child neglect.[1] After careful review, we have reached the conclusion that the evidence introduced at trial is not sufficient to support a conviction for first-degree murder. We therefore hold that the defendant's conviction must be reduced to second-degree murder.

        13
        1. Factual Background
        14

         

        15

        The victim in this case, Eddie Eugene Brown, was born in early February 1982, the son of defendant Mack Edward Brown and his co-defendant, Evajean Bell Brown, who were not living together at the time of Eddie's birth and were later divorced. Evajean was not able to nurse Eddie immediately after his birth because she was hospitalized with hypotoxemia.

        16

        According to his pediatrician, this hospitalization and inability to nurse may have contributed to Eddie's being, as the doctor described him, a "failure to thrive baby." When the physician first saw Eddie on March 17, 1982, at a little more than five weeks old, the infant was in good health but smaller than the median for his age. Mack and Evajean were still separated at that time, and relations between them eventually worsened to the point that Evajean asked the pediatrician to change Eddie's name on his records to Justin Michael Brown. Because Eddie had not begun to talk by age two-and-a-half, he was referred to the University of Tennessee Speech and Hearing Clinic. The clinic's report indicates that by age three years and four months, he was not yet toilet-trained and could speak single words, but not whole sentences. Evajean brought Eddie to see his pediatrician on November 5, 1984, because, as the doctor testified, she said he had fallen down fifteen carpeted stairs the night before. Although the physician found no injuries consistent with such a fall, he did note that Eddie's penis was red, swollen, and tender to the touch. His medical records do not give a reason for this condition. Eddie's last visit to his pediatrician's office was on October 16, 1985, [534] with his mother and father, who by that time had reconciled.

        17

        According to a Department of Human Services social worker who had investigated the Brown home, Eddie was a hyperactive child with a severe speech problem. She reported that he also had severe emotional and behavioral problems. As an example of his behavior, she reported that during her visit, he ran down the hall directly into a wall.

        18

        Defendant Mack Brown's relationship with Evajean Brown appears to have been influenced by his dependent personality, a condition confirmed by the diagnoses of the staff of the Middle Tennessee Mental Health Institute and the Helen Ross McNabb Center. In describing Mack and Evajean's relationship, Mack's mother stated that he appeared to do everything Evajean wanted him to do and that he seemed to be afraid of her. A witness who visited them when Eddie was taken to the hospital on April 10, 1986, indicated that they sat close to one another holding hands and that whenever Evajean got up, he followed her. Mack's mother testified that they remarried in the summer of 1985.

        19

        Mack had been living with his wife and his son for less than a year when Eddie died. The Brown's next-door neighbor testified that, at around 3:40 a.m. on April 10, 1986, she heard yelling and screaming in their apartment. She distinctly heard a man's voice say, "Shut up. Get your ass over here. Sit down. Shut up. I know what I'm doing." She also heard a woman's voice say, "Stop, don't do that. Leave me alone. Stop don't do that." She testified that the fight went on for 30 minutes and that she heard a sound which she described as a "thump, like something heavy hit the wall." The only other evidence introduced concerning the events of that morning was the tape of Evajean's call for an ambulance. At 8:59 a.m. she telephoned for help for her son, stating that he "fell down some steps and he's not breathing."

        20

        The paramedics who answered the call tried to revive Eddie but were unsuccessful. His heartbeat was reestablished at the hospital, but as it turned out, he was already clinically brain-dead. One of the treating nurses later testified that at that point, Eddie was being kept alive only for purposes of potential organ donation.

        21

        Various examinations indicated that the child had suffered two, and possibly three, skull fractures. The CT scan revealed a hairline fracture in the front right temporal portion of his skull, as well as a blood clot and swelling in that area of the head. The scan also revealed the possibility of a second fracture in the middle of the frontal bone.[2] Finally, blood coming from Eddie's ear indicated that he had a fracture at the base of his skull which had caused an injury to the middle ear. Although no basiliar skull fracture appeared on the X-rays or CT scan of Eddie's skull, expert testimony established that such fractures generally are not revealed in these ways.

        22

        The CT scan showed a cerebral edema, or swelling of the brain, which was more pronounced on the right side of the brain than the left, and which had shifted the midline of Eddie's brain toward the left. The pathologist who performed the autopsy noted the presence of vomit in Eddie's lungs and explained that swelling in the brain can cause vomiting. He theorized that repeated blows to Eddie's head caused cerebral hemorrhages and swelling. According to the expert, this pressure in the skull resulted in Eddie's aspiration of his own vomit and his ultimate death. He testified further that the swelling process could have taken as long as four or five hours to a day, or as little as 15 minutes.[3]

        23

        A neurological surgeon testified that Eddie's brain injuries were, at least in part, [535] consistent with contrecoup[4] injuries, which occur when the head is violently shaken back and forth. The surgeon explained that there is a limited amount of fluid between the brain and the skull. That fluid generally serves as a shock absorber, but when the skull and brain are moving at a sufficient velocity and the skull suddenly stops, the fluid is not an adequate buffer between the delicate brain tissue and the hard skull surface. As he described this phenomenon at trial, "when the skull stops the brain slaps up against it," resulting in severe bruising and swelling of the brain.

        24

        In addition to his cranial and cerebral injuries, Eddie had several internal injuries. When Eddie's internal organs were removed for donation, the county medical examiner observed hemorrhaging in the duodenum section of his intestine. He testified that such localized hemorrhaging was consistent with a blow by a fist to the upper portion of the abdomen. Additionally, blood was found in the child's stool and urine, and his liver enzymes were elevated. There was testimony to the effect that these conditions may have resulted from cardiac arrest, but that they are also consistent with blows to the abdomen, liver, and kidneys.

        25

        Finally, Eddie had bruises of varying ages on his face, scalp, ears, neck, chest, hips, legs, arms, buttocks, and scrotum. He had a large abrasion on his shoulder, scratches on his neck and face, and a round, partially healed wound on his big toe which, according to one of his treating nurses, was consistent with a cigarette burn.[5] He had lacerations on both his ears at the scalp. He had linear bruises consistent with being struck with a straight object. The autopsy revealed an old lesion at the base of his brain which was evidence of a head injury at least two weeks before his death. X-rays revealed a broken arm which had not been treated and which had occurred three to five weeks before his death. The injury to his arm was confirmed by a witness who had noticed his arm hanging limply and then later noticed it in a homemade sling.

        26

        The defendant's statement to the police verified the fact that Eddie's broken arm was never properly treated, but Mack Brown also told them that he had tried to help Eddie by making a splint for his arm himself. He explained that he did not take Eddie for medical treatment because he was terrified that no one would believe that he and his wife had not inflicted this injury on the child. He could not explain the old bruises on Eddie's body. He stated that although sometimes they disciplined Eddie by spanking him, they did attempt to discipline him in, as he described it, "alternative ways" such as sending him to his room to let him know that they were upset and wanted him to mind.

        27

        Brown's statement indicates that around two or three o'clock on the morning of April 10, 1986, he and his wife both spanked Eddie because Eddie had urinated and defecated on the floor. The defendant admitted to another spanking, after he had sent Eddie to bed, and after he and his wife had a fight over money. As the defendant described it, it was during this spanking that his "mood began to kind of snap and let go." He said that he remembered going to Eddie's bedroom and remembered ordering Evajean out of the room. Although he denied remembering anything other than spanking Eddie's bottom with the open part of his hand, he stated that he was afraid he had beaten Eddie during the time that everything "went blank." The only thing he clearly recalled before that point was Eddie "staring at [him] mean" and saying, "I hate you! I hate you!" He stated that his next memory was of going downstairs and hearing Eddie behind him, falling onto the landing and into the door.

        28

        When the police questioned the defendant, his right hand was badly swollen. He explained that several days prior to [536] April 10, he had injured his hand while working on his car and had sought medical treatment at Fort Sanders Hospital. They put a splint on his hand and gave him pain medication. He denied having struck Eddie with his right hand, stating that "[i]t hurts so bad there ain't no way." The hospital's records indicate that on April 3, the defendant's hand was x-rayed and splinted. The records do not indicate that there was any break in the skin on the hand.

        29

        With the consent of the defendant, the police searched the apartment and recovered numerous items stained with blood consistent with Eddie's blood type, including an adult pajama top, a brown paper bag from the living room floor, and several towels and wash cloths. Police also found a bandage under the kitchen sink which was stained with blood consistent with Eddie's blood type. The blood on this bandage material was on the outside near the adhesive tape, not on the inner surface, which would have been next to the skin of the person wearing the bandage. The pants the defendant was wearing at the time of his arrest also had blood stains on them that were consistent with Eddie's blood type. A number of other items collected from the apartment tested positive for human blood, but the type of blood could not be determined because there was too little blood or they had been washed. These items included the couch cover, a pillow case and sheets taken from Eddie's bed, paint chips from the wall in Eddie's room, a child's undershirt and socks, and a three-by-five inch section of the living room rug.

        30

        The defendant's low level of intellectual functioning has been evident in nearly every phase of his life. His mother's testimony indicated that, as a baby, he was slow in learning to walk, a condition she blamed on head injuries he might have sustained when he was delivered using forceps. At age 12, he was considered by school officials to be educably mentally retarded. His school records for 1964 indicate an IQ of 55, using a Lorge-Thorndike test. In 1966, while 14 years old and still in the third grade, he was tested again. His verbal score was 56 and his non-verbal score was 75, for a total score of 62. In 1968, his verbal score was 53 and his non-verbal score was 76, for a total score of 60. After his arrest, he was evaluated at Middle Tennessee Mental Health Institute and scored 75 on the Wexler Adult Intelligence Test. Because there was some evidence that the defendant might be malingering, the clinical psychologist who performed the test at MTMHI testified that he felt that the test results did not reflect the defendant's true abilities and suggested that a rough estimate of his capabilities might be five to ten points higher.[6]

        31

        The defendant also has a documented history of mental and emotional problems. On a neighbor's recommendation, he sought help through the Helen Ross McNabb Center between the time of his divorce and his remarriage. The staff there diagnosed him as having recurrent major depression and a dependent personality, a condition characterized by inadequacy in decision-making and a tendency to allow another person to accept the major responsibilities for his life. At that time, he showed symptoms such as crying, appetite loss, sleep problems and numbness, tingling and headaches, among other things. He had made suicidal gestures but never a serious attempt on his own life.

        32

        After his arrest he was placed at the Middle Tennessee Mental Health Institute for observation from June 10 through July 29, 1986. While there he was diagnosed as having a dysthymic disorder, that is, a depressive neurosis, and a dependent personality. Experts at MTMHI concluded that he was not psychotic and that although he did have a significant personality disorder and was probably borderline mentally retarded, the degree of his retardation was not sufficient to establish an insanity defense. This diagnosis was confirmed during the defendant's second visit to MTMHI from April 4 through May 6, 1988, for a competency evaluation. The staff reiterated that the defendant's handicapping [537] feature is his low intellect. These findings were also confirmed by the staff of the Helen Ross McNabb Center, which provided follow-up care to the defendant after his release from MTMHI.

        33
        2. Sufficiency of the Evidence
        34

         

        35

        We are asked first to decide whether the evidence was sufficient to support the verdict of first-degree murder. The defendant argues principally that premeditation was not shown. He also contends that adequate weight was not given to the fact that another adult (Eddie's mother) was in the home and that Eddie had sustained injuries in the past while she had sole custody of him. Further, the defendant questions whether the state carried its burden of proving his sanity.

        36

        Our consideration of the sufficiency of the evidence is governed by the "well-settled rule that all conflicts in testimony, upon a conviction in the trial court, are resolved in favor of the State, and that upon appeal the State is entitled to the strongest legitimate view of the trial evidence and all reasonable or legitimate inferences which may be drawn therefrom." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nevertheless, the record must demonstrate that the state carried its burden at trial of establishing that the homicide in question was, indeed, first-degree murder. In this case, we conclude, the prosecution failed to discharge its burden.

        37

        Addressing the least complex of the defendant's allegations first, we note that the question of relative criminal responsibility for the victim's death, as between Mack Brown and Evajean Brown, was essentially one of credibility for the jury's determination. We find no basis to disturb the jury's determination in this regard.

        38

        We also conclude that the state carried its burden on the issue of the defendant's sanity. The defense expert who reviewed the defendant's history and attempted to interview him concluded that the defendant met the criteria for the insanity defense in Tennessee because he was suffering from depression with psychotic features. Although the state's psychological experts conceded that the defendant was chronically depressive and might be mentally retarded, they concluded unequivocally that his condition did not rise to the level of insanity, under the standards of Graham v. State, 547 S.W.2d 531, 543 (Tenn. 1977). This conflict in testimony must be resolved in favor of the state's theory, based on the jury's verdict of guilt as approved by the trial judge. See State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).

        39

        But even though the defendant failed to establish insanity as an absolute defense to homicide in this case, his mental state was nevertheless relevant to the charge of first-degree murder, to the extent that it related to the necessary elements of that offense. The statute in effect at the time of the homicide in this case defined first-degree murder as follows:

        40
        Every murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb, is murder in the first degree.
        41

         

        42

        T.C.A. § 39-2-202(a) (1982). Based upon our review of the record, we conclude that the evidence in this case is insufficient to establish deliberation and premeditation. Hence, the defendant's conviction for first-degree murder cannot stand. However, we do find the evidence sufficient to sustain a conviction of second-degree murder.

        43

        At common law, there were no degrees of murder, but the tendency to establish a subdivision by statute took root relatively early in the development of American law. The pattern was set by a 1794 Pennsylvania statute that identified the more heinous kinds of murder as murder in the first degree, with all other murders deemed to be murder in the second degree. Some states have subdivided the offense into three or even four degrees of murder, but [538] since the enactment of the first such statute in 1829, Tennessee has maintained the distinction at two.[7] It is one which this Court has found to be "not only founded in mercy and humanity, but ... well fortified by reason."[8] Poole v. State, 61 Tenn. 289, 290 (1872).

        44

        From the beginning, the statutory definition of first-degree murder required the state to prove that "the killing [was] done willfully, that is, of purpose, with intent that the act by which the life of a party is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design must be formed to kill, before the act, by which the death is produced, is performed." Dale v. State, 18 Tenn. (10 Yer.) 551, 552 (1837) (emphasis added). Because conviction of second-degree murder also requires proof of intent and malice, the two distinctive elements of first-degree murder are deliberation and premeditation.

        45

        Even as early as 1872, however, prosecutors and judges had apparently fallen into the error of commingling these two elements by using the terms interchangeably. In Poole v. State, supra, for example, Justice Turney expounded upon the statutory distinction between deliberation and premeditation and the need to maintain them as separate elements of the first-degree murder:

        46

        It is the defining words of the statute that make the offenses [of first- and second-degree murder] and distinctions between them, definitions and distinctions in the control of the Legislature — control it has exercised, and the Courts are bound by it.

        It is too late, after the words of the Act have been so long, uniformly and plainly construed, to attempt to make any two of its words have the same meaning — a meaning of equally forcible import — so as to excuse or do away with the employment of one in an indictment for murder in the first degree... .

        [As we noted in Dale v. State] `... proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the conquering will, deliberation and premeditation of the party accused sought,' making a marked distinction and independence between the terms `deliberation' and `premeditation' and excluding the idea of the substitution of the one for the other, or of the tautology in their use.

        47

         

        48

        Id. 61 Tenn. at 290-92 (emphasis added).

        49

        In Poole, the issue was whether the indictment, which was drawn in the language of common-law murder, was sufficient to charge statutory first-degree murder, given the fact that it included "no word or sentence charging a cool purpose, [deliberation being] an indispensable ingredient in murder in the first degree." Id. at 293. As Justice Turney noted, "[w]illfulness, malice and premeditation may exist without that cool purpose contemplated by the statute as construed," id., and if so, the result is second-degree murder, not first.

        50

        Intent to kill had long been the hallmark of common-law murder, and in distinguishing manslaughter from murder on the basis of intent, the courts recognized, in the words of an early Tennessee Supreme Court decision, that

        51
        [t]he law knows of no specific time within which an intent to kill must be formed so as to make it murder [rather than manslaughter]. If the will accompanies the act, a moment antecedent to the act itself which causes death, it seems to be as completely sufficient to make the offence murder, as if it were a day or any other time.
        52

         

        53

        [539] Anderson v. State, 2 Tenn. (2 Overt.) 6, 9 (1804). Of course, the Anderson opinion predates the statutory subdivision of murder into first and second degrees. But the temporal concept initially associated in that case with intent, i.e., that no definite period of time is required for the formation of intent, was eventually carried over and applied to the analysis of premeditation. Hence, by the time the opinion in Lewis v. State was announced in 1859, the Court had begun the process of commingling the concepts of intent, premeditation, and deliberation, as the following excerpt demonstrates:

        54
        The distinctive characteristic of murder in the first degree, is premeditation. This element is superadded, by the statute, to the common law definition of murder. Premeditation involves a previously formed design, or actual intention to kill. But such design, or intention, may be conceived, and deliberately formed, in an instant. It is not necessary that it should have been conceived, or have pre-existed in the mind, any definite period of time anterior to its execution. It is sufficient that it preceded the assault, however short the interval. The length of time is not of the essence of this constituent of the offense. The purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment preceding the act by which the death is produced, than if it had been formed an hour before.
        55

         

        56

        40 Tenn. (3 Head) 127, 147-48 (1859) (emphasis added).

        57

        It is this language ("premeditation may be formed in an instant") for which Lewis is frequently cited. See, e.g., Turner v. State, 119 Tenn. 663, 108 S.W. 1139, 1142 (1908). What is often overlooked is the following language, also taken from Lewis:

        58
        The mental state of the assailant at the moment, rather than the length of time the act may have been premeditated, is the material point to be considered. The mental process, in the formation of the purpose to kill, may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object to be accomplished — the end determined upon.
        59

         

        60

        Lewis, 40 Tenn. at 148 (emphasis added).

        61

        Hence, perhaps the two most oft-repeated propositions with regard to the law of first-degree murder, that the essential ingredient of first-degree murder is premeditation and that premeditation may be formed in an instant, are only partially accurate, because they are rarely quoted in context. In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection. As noted in Rader v. State, 73 Tenn. 610, 619-20 (1880):

        62
        When the murder is not committed in the perpetration of, or attempt to perpetrate any of the felonies named in the [statute], then, in order to constitute murder in the first degree, it must be perpetrated by poison or lying in wait, or some other kind of willful, deliberate, malicious, and premeditated killing; that is to say, the deliberation and premeditation must be akin to the deliberation and premeditation manifested where the murder is by poison or lying in wait — the cool purpose must be formed and the deliberate intention conceived in the mind, in the absence of passion, to take the life of the person slain. Murder by poison or lying in wait, are given as instances of this sort of deliberate and premeditated killing, and in such cases no other evidence of the deliberation and premeditation is required; but where the murder is by other means, proof of deliberation and premeditation is required. It is true it has been held several times that the purpose need not be deliberated upon any particular length of time — it is enough if it precede the act, but in all such cases the purpose must be coolly formed, and not in passion, or, if formed in passion, it must be executed after the passion has had time to subside... . [I]f the purpose to kill is formed in passion ..., and executed [540] without time for the passion to cool, it is not murder in the first degree, but murder in the second degree.
        63

         

        64

        (Emphasis added.)

        65

        The obvious point to be drawn from this discussion is that even if intent (or "purpose to kill") and premeditation ("design") may be formed in an instant, deliberation requires some period of reflection, during which the mind is "free from the influence of excitement, or passion." Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).

        66

        Despite admonitions in the opinions of the Tennessee Supreme Court during the nineteenth century and early part of the twentieth century regarding the necessity of maintaining a clear line of demarcation between first- and second-degree murder,[9] that line has been substantially blurred in later cases. The culprit appears to be the shortcutting of analysis, commonly along three or four different tracks.

        67

        One of those has been the same error decried by Justice Turney in 1872, i.e., the use of the terms "premeditation" and "deliberation" interchangeably, or sometimes collectively, to refer to the same concept. Thus, in Sikes v. State, 524 S.W.2d 483, 485 (Tenn. 1975), the Court said: "Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution." While this statement focuses on premeditation, nowhere in the brief discussion that follows is there any reference to the coolness of purpose or reflection that is required under the older cases to establish deliberation as a separate and distinct element of first-degree murder. But if deliberation was given little attention in Sikes, it was not even discussed in State v. Martin, 702 S.W.2d 560 (Tenn. 1985), perhaps because the litigants failed to raise the issue. In Martin, the Court confined its first-degree murder analysis to the elements of premeditation, willfulness, and malice, even though the theory of defense suggests that lack of proof of deliberation was equally relevant to the discussion. Id. at 562-63.

        68

        Another weakness in our more recent opinions is the tendency to overemphasize the speed with which premeditation may be formed. The cases convert the proposition that no specific amount of time between the formation of the design to kill and its execution is required to prove first-degree murder, into one that requires virtually no time lapse at all, overlooking the fact that while intent (and perhaps even premeditation) may indeed arise instantaneously, the very nature of deliberation requires time to reflect, a lack of impulse, and, as the older cases had held at least since 1837, a "cool purpose." Dale v. State, supra, 18 Tenn. at 552.

        69

        This trend toward a confusion of premeditation and deliberation has not been unique to Tennessee. It was for a time reflected by the commentators. In Clarke v. State, supra, 402 S.W.2d at 868, the Court quoted from the 1957 edition of Wharton's Criminal Law and Procedure as follows:

        70
        "Deliberation and premeditation involve a prior intention or design to do the act in question. It is not necessary, however, that this intention should have been conceived at any particular period of time, and it is sufficient that only a moment elapsed between the plan and its execution... ."
        71

         

        72

        A more recent version of Wharton's Criminal Law, however, returns the discussion of premeditation and deliberation to its roots:

        73
        Although an intent to kill, without more, may support a prosecution for common law murder, such a murder ordinarily constitutes murder in the first degree only if the intent to kill is accompanied by premeditation and deliberation. `Premeditation' [541] is the process simply of thinking about a proposed killing before engaging in the homicidal conduct; and `deliberation' is the process of carefully weighing such matters as the wisdom of going ahead with the proposed killing, the manner in which the killing will be accomplished, and the consequences which may be visited upon the killer if and when apprehended. `Deliberation' is present if the thinking, i.e., the `premeditation,' is being done in such a cool mental state, under such circumstances, and for such a period of time as to permit a `careful weighing' of the proposed decision.
        74

         

        75

        C. Torcia, Wharton's Criminal Law § 140 (14th ed. 1979) (emphasis added).

        76

        To the same effect is this analysis of the distinction between first- and second-degree murder found in 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986):

        77
        Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first-degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first-degree murder.
        78
        (a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first-degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words `premeditate' and `deliberate' as they are used in connection with first-degree murder. Perhaps the best that can be said of `deliberation' is that it requires a cool mind that is capable of reflection, and of `premeditation' that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.
        79
        It is often said that premeditation and deliberation require only a `brief moment of thought' or a `matter of seconds,' and convictions for first-degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to `speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, ... destroys the statutory distinction between first and second-degree murder,' and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for `further thought, and a turning over in the mind.' (Footnotes omitted; emphasis added.)
        80

         

        81

        One further development in Tennessee law has tended to blur the distinction between the essential elements of first- and second-degree murder, and that is the matter of evidence of "repeated blows" being used as circumstantial evidence of premeditation. Obviously, there may be legitimate first-degree murder cases in which there is no direct evidence of the perpetrator's state of mind. Since that state of mind is crucial to the establishment of the elements of the offense, the cases have long recognized that the necessary elements of first-degree murder may be shown by circumstantial evidence. Relevant circumstances recognized by other courts around the country have included the fact "that a deadly weapon was used upon an unarmed victim; that the homicidal act was part of a conspiracy to kill persons of a particular class; that the killing was particularly cruel; that weapons with which to commit the homicide were procured; that the defendant made declarations of his intent to kill the victim; or that preparations were made [542] before the homicide for concealment of the crime, as by the digging of a grave." Wharton's Criminal Law, supra, at § 140. This list, although obviously not intended to be exclusive, is notable for the omission of "repeated blows" as circumstantial evidence of premeditation or deliberation.

        82

        In Tennessee, the use of repeated blows to establish the premeditation necessary to first-degree murder apparently traces to Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). There the Court, after noting that "[b]oth premeditation and deliberation may be inferred from the circumstances of a homicide," id., 231 S.W.2d at 711, went on to list a series of facts from which the Court concluded that the victim's death constituted first-degree murder. The first (but not the only) such circumstance mentioned was that "the deceased was not only struck and killed by a blow from an iron poker but apparently from the number and nature of his wounds, was beaten to death by a whole series of blows." Id. While the Bass court did not interpret the fact of repeated blows to be sufficient, in and of itself, to constitute premeditation and deliberation, subsequent cases have done so. In Houston v. State, for example, the only circumstance relied upon by the majority to establish premeditation and deliberation was the fact that the victim had sustained "repeated shots or blows." 593 S.W.2d 267, 273 (Tenn. 1980).

        83

        The culmination of this development is probably best represented by the analysis in State v. Martin, supra, 702 S.W.2d at 563, where the Court said:

        84
        Repeated blows or shots may support an inference of premeditation. See Houston v. State, 593 S.W.2d 267, 273 (Tenn. 1980). It is also possible that the jury could have found that during the struggle [with the victim] appellant decided to kill the victim, only a moment of time being required between the plan to kill and its execution. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).
        85

         

        86

        Logically, of course, the fact that repeated blows (or shots) were inflicted on the victim is not sufficient, by itself, to establish first-degree murder. Repeated blows can be delivered in the heat of passion, with no design or reflection. Only if such blows are inflicted as the result of premeditation and deliberation can they be said to prove first-degree murder.

        87

        In bringing three of the previously discussed threads together — recognition of "repeated blows" as sufficient evidence of premeditation, invocation of the rule that "premeditation can be formed in an instant," and omission of any discussion of deliberation as a necessary element of murder in the first degree — the Martin decision represents a substantial departure from the traditional law of homicide. It also undercuts older Tennessee cases such as Rader v. State, supra, 73 Tenn. at 620, which emphasized that intent to kill, if formed during a deadly struggle, would support only a conviction for second-degree murder, unless the state could show that premeditation and deliberation had preceded the struggle.

        88

        Since the opinion in Martin, the Tennessee General Assembly has rewritten the state's homicide statute. In addition to certain felony-murder provisions, T.C.A. § 39-13-202(a)(1) defines first-degree murder as "[a]n intentional, premeditated and deliberate killing of another." The mens rea elements of deliberation and premeditation have been further emphasized by the inclusion of definitional sections in T.C.A. § 39-13-201(b), as follows:

        89
        (1) "Deliberate act" means one performed with a cool purpose; and
        90
        (2) "Premeditated act" means one done after the exercise of reflection and judgment. Premeditation may include instances of homicide committed by poison or by lying in wait.
        91

         

        92

        Without commenting on the validity of the result we reached in Martin v. State, we can only conclude that the legislature's enactment of the provisions set out above should have the effect of steering the courts back onto the right track in their analysis of the law of homicide. And although the 1989 legislation predates the offense in this case, we believe it is worth emphasis here, because it clearly represents [543] the legislature's intent that the courts of Tennessee should adhere to long-established rules of law and that we should abandon the modern tendency to muddle the line between first- and second-degree murder. Certainly, more than the mere fact of "repeated blows" must be shown to establish first-degree murder, and to the extent that the opinions in Houston and Martin can be read to hold otherwise, they are expressly overruled.

        93

        Moreover, even though the Sentencing Commission Comments to T.C.A. § 39-13-201 indicate that the definition in subsection (b)(2) "permits that `premeditation may be formed in an instant,'" citing Taylor v. State, 506 S.W.2d 175 (Tenn. Crim. App. 1973), we think it is time to recognize, as Justice Brock argued in Everett v. State, that "[m]ore than a split-second intention to kill is required to constitute premeditation," which "by its very nature is not instantaneous, but requires some time interval." 528 S.W.2d 25, 28-29 (Tenn. 1975) (Brock, J., dissenting; emphasis in original).

        94

        It is consistent with the murder statute and with case law in Tennessee to instruct the jury in a first-degree murder case that no specific period of time need elapse between the defendant's formulation of the design to kill and the execution of that plan, but we conclude that it is prudent to abandon an instruction that tells the jury that "premeditation may be formed in an instant." Such an instruction can only result in confusion, given the fact that the jury must also be charged on the law of deliberation. If it was not clear from the opinions emanating from this Court within the last half-century, it is now abundantly clear that the deliberation necessary to establish first-degree murder cannot be formed in an instant. It requires proof, as the Sentencing Commission Comment to § 39-13-201(b) further provides, that the homicide was "committed with `a cool purpose' and without passion or provocation," which would reduce the offense either to second-degree murder or to manslaughter, respectively.

        95

        This discussion leads us inevitably to the conclusion that Mack Brown's conviction for first-degree murder in this case cannot be sustained. The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree. Witt v. State, 46 Tenn. (6 Cold.) 5, 8 (1868). The state bears the burden of proof on the issue of premeditation and deliberation sufficient to elevate the offense to first-degree murder. Bailey v. State, 479 S.W.2d 829, 833 (Tenn. Crim. App. 1972).

        96

        Here, there simply is no evidence in the record that in causing his son's death, Mack Brown acted with the premeditation and deliberation required to establish first-degree murder. There is proof, circumstantial in nature, that the defendant acted maliciously toward the child, in the heat of passion or anger,[10] and without adequate provocation — all of which would make him guilty of second-degree murder. The only possible legal basis upon which the state might argue that a first-degree conviction can be upheld in this case is the proof in the record that the victim had sustained "repeated blows." It was on this basis, and virtually no other, that we upheld a similar first-degree murder conviction for the death of a victim of prolonged child abuse in State v. LaChance, 524 S.W.2d 933 (Tenn. 1975). In view of our foregoing discussion concerning the shortcomings of such an analysis, we find it necessary to depart from much of the rationale underlying that decision.

        97

        In abandoning LaChance, we are following the lead of a sister state. In Midgett v. State, 729 S.W.2d 410 (Ark. 1987), the Arkansas Supreme Court was asked to affirm the first-degree murder conviction of a father who had killed his eight-year-old son by repeated blows of his fist. As was the case here, there was a shocking history of [544] physical abuse to the child, established both by eyewitness testimony and by proof of old bruises and healed fractures.

        98

        The Arkansas court faced a precedent much like LaChance in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). There the court had described the injuries sustained by the child victim and held, without more, that the "required mental state for first-degree murder can be inferred from the evidence of abuse, which is substantial." Id., 697 S.W.2d at 98. In confessing error in Burnett, the Midgett court noted:

        99
        The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son's death, he could have accomplished it in a previous beating... .
        100
        The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.
        101

         

        102

        Midgett, 729 S.W.2d at 413-14.

        103

        The Arkansas court, in strengthening the requirements for proof of premeditation and deliberation in a first-degree murder case involving a victim of child abuse, found it necessary to overrule prior case law to the extent that it was inconsistent with the opinion in Midgett. We do the same here. Like the Midgett court, we do not condone the homicide in this case, or the sustained abuse of the defenseless victim, Eddie Brown. We simply hold that in order to sustain the defendant's conviction, the proof must conform to the statute. Because the state has failed to establish sufficient evidence of first-degree murder, we reduce the defendant's conviction to second-degree murder and remand the case for resentencing.

        104
        3. Motion to Suppress
        105

         

        106

        The defendant filed a pretrial motion to suppress, in which he claimed that his initial statement to police was taken in violation of his Miranda rights and should therefore be held inadmissible. He also contended that because his subsequent statements to police (one given at his home and another at police headquarters) and his consent to search his apartment flowed from that initial statement, they must be considered the "fruit of the poisonous tree" and should likewise be suppressed.

        107

        At the suppression hearing, the proof showed that the defendant's first statement was obtained as a result of questioning by Officer Henry Wood at the East Tennessee Children's Hospital. Officer Wood arrived at the hospital at about 3:00 p.m. on April 10, 1986, the day of Eddie's admission to the hospital. He initially met Pam Self, a Department of Human Services social worker, who told him that the parents had brought the child in and that the doctors believed that the case involved child abuse. She described Eddie's injuries to him and told Wood that the doctors did not consider his injuries to be consistent with falling down a flight of stairs. Officer Wood then saw the child and was informed that he was brain-dead. He spoke first with Evajean Brown and then with Mack Brown. At approximately 3:30 p.m., Mack Brown gave a statement after being advised as follows:

        108
        I want you to understand your rights. You have the right to remain silent; anything you say can be used against you in a court of law. You have the right for an attorney to be present. You can stop answering questions at any time.
        109

         

        110

        Brown was not informed that he had the right to have counsel appointed if he could not afford to hire counsel himself. The warnings given were, therefore, not technically in conformity with the requirements of the Miranda rule.

        111

        Officer Wood testified that he had no grounds upon which to arrest Mack Brown until Brown admitted that he had hit his son during this first interview. The arrest [545] warrant indicates that Wood placed Brown under arrest at 4:00 p.m.

        112

        Subsequent to the interview at the hospital, Officer Wood transported the defendant to his apartment and obtained his consent to conduct a search. During the course of the search, the defendant responded to questions by the police, who recorded his statements on the same tape as his initial statement obtained at the hospital. Items seized during this search included a wire coat hanger, a phone receiver, a man's slacks, shirt, and tennis shoes, wash cloths, and pills later identified as the non-narcotic drug Motrin. The search took an hour and a half, after which the defendant was transported to the Sheriff's Department at about 6:00 p.m.

        113

        At about 6:30 p.m., the defendant was fully advised of his rights in accordance with Miranda and signed a waiver of his rights. In response to police questioning, the defendant gave a statement that concluded at 7:15 p.m. The only further police contact with the defendant that evening occurred when the police talked to him in order to complete arrest forms at approximately 9:00 p.m.

        114

        At 9:30 p.m., Officer Woods spoke with Evajean Brown again at her request. Evajean recanted her prior statement that Eddie had sustained his injuries from a fall down stairs and placed the blame for Eddie's injuries on Mack Brown. Officer Wood's affidavit in support of his request for a search warrant indicates that Evajean Brown told him she witnessed several episodes during which Mack Brown beat and kicked Eddie Brown during the evening of April 9 and the early morning of April 10. She told Officer Wood that these beatings took place both upstairs and downstairs in their apartment.

        115

        Based on Officer Wood's affidavit, a search warrant was issued on April 16 for the Browns' apartment. This affidavit contains information obtained from all stages of Officer Wood's investigation, including the statements of the social worker and of the Browns at the hospital, Officer Wood's earlier observations in the Browns' apartment, the statement given by the defendant at the Sheriff's office at 6:30 on April 10, and the statements made by Evajean Brown later that evening. During the course of the search conducted pursuant to this search warrant, the police seized some 31 items with varying degrees of relevance to the issues in dispute at trial.

        116

        The trial court suppressed the statements obtained from the defendant at the hospital and in his apartment, but held that the defendant's consent to the search of his apartment was voluntarily given and refused to suppress the evidence seized during that search. The court also held that the statement given at 6:30 p.m. on April 10 was admissible because it was voluntarily given after a proper administration of Miranda warnings and a waiver of rights. Further, the trial judge held the search warrant to be proper and suppressed only a few items, the seizure of which he held to have exceeded the scope of the warrant.

        117

        The defendant now argues that because the initial statement obtained at the hospital was taken without full Miranda warnings, all subsequent evidence was obtained as a result of this initial statement and should have been excluded under a "fruit of the poisonous tree" theory. The defendant cites Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), United States v. Smith, 730 F.2d 1052, 1056 (6th Cir.1984), and State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989), as authority for this proposition.

        118

        The state argues in response that the failure by police to give the defendant adequate Miranda warnings prior to questioning him at the hospital may render the resulting statement inadmissible, but that the error by police has no effect on the validity of the defendant's subsequent consent to search or on the admissibility of his later statements to police. In this regard, the state relies on the United States Supreme Court's opinion in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), for the proposition that an error made by police officers in administering Miranda warnings does not require the suppression of a subsequent statement, if the record establishes that the statement is [546] "knowingly and voluntarily made." Id. 470 U.S. at 309, 105 S.Ct. at 1293.

        119

        We have reviewed the record of the suppression hearing carefully, and we conclude that the rule in Elstad is inapplicable to the facts in this case because there was no violation of Miranda with regard to the defendant's initial statement at the hospital.

        120

        The prosecution conceded from the outset that the warnings given to Mack Brown at the hospital were technically deficient. The assistant district attorney argued, however, that at the time he gave the statement, the defendant was not "in custody," as that term is used in Miranda, and that the warnings were therefore unnecessary. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) (defining "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.")

        121

        The proof shows that when Officer Wood first questioned the defendant and his wife, he knew that hospital personnel suspected child abuse, and he knew that the victim was considered brain-dead as a result. Although the circumstances pointed to the Browns as the perpetrators of the abuse, Officer Wood testified that Mack Brown was not in custody at the time of the interview, and that there was not a sufficient basis upon which to detain or arrest him until he admitted hitting the child. Asked what he would have done if the defendant had not implicated himself in the initial interview, Officer Wood replied that he would have had to continue the investigation. Without the benefit of medical reports, other corroborating evidence of abuse, or an incriminating statement by one or both of the Browns, there simply was not sufficient evidence upon which to determine whether Mack Brown was a suspect, a witness, or neither. Once Brown did implicate himself, Officer Wood made a warrantless arrest. From that point forward, the defendant was clearly not free to leave; but prior to his 4:00 p.m. arrest, there is no objective evidence that he was "in custody."

        122

        Despite the prosecutor's argument that Brown was not subjected to custodial interrogation at the hospital and that the failure to give proper Miranda warnings was therefore immaterial, the trial judge ultimately ruled that the statement given at the hospital was not admissible. At the conclusion of the suppression hearing, the trial judge noted that "the defendant was, in effect, taken into custody some time around 4 o'clock," which was after the initial statement was made. After taking the motion to suppress under advisement, however, the trial judge ruled two days later that the statement was inadmissible because the investigation was "focused on the defendant" at the time it was made. In response to the prosecutor's attempt to point out that "focus is not the law in this state,"[11] the trial judge replied, "Well, I won't allow that first statement anyway." No other reason for suppression was offered.

        123

        In view of the trial judge's earlier finding that the defendant was not actually "in custody" until 4:00 p.m., after the statement at the hospital was given, we conclude that the court's ruling on the admissibility of that statement was erroneous. To the extent that the defendant made incriminating statements at his apartment a short time later, while he was in custody but had not yet had the benefit of proper Miranda warnings, those statements were properly suppressed by the trial judge. However, we cannot find from the record before us that there was any relationship between statements made by the defendant during the initial search of the apartment and the formal statement that he gave at police headquarters after executing a written waiver of his Miranda rights.

        124

        In State v. Smith, 834 S.W.2d 915 (Tenn. 1992), we held that "after illegally [547] obtaining an incriminating statement from a defendant, [the state] must establish that [any] subsequent confession was given freely and voluntarily and that the constitutional right to be free from self-incrimination was not waived due solely to the psychological pressures resulting from giving the previous statement." Id. at 921. In this case, the state carried its burden as to the voluntariness of the last of Mack's three incriminating statements. We therefore conclude that his 6:30 p.m. statement was fully admissible.

        125

        Nor do we find any error in regard to the validity of the search of the Browns' apartment that was conducted by police on the afternoon of April 10. That search was based on consent obtained from the defendant.

        126

        In order to pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769 (1967). In this case, the police obtained the defendant's verbal permission to search his home, and Brown signed a consent form that explicitly makes reference to his right to refuse to consent to a search. Without some further evidence relevant to the questions of voluntariness, we find no basis upon which to invalidate the resulting search or to suppress the evidence that was seized by police at that time.

        127

        Finally, we agree with the trial court that the ensuing search warrant was properly issued. Sufficient evidence was presented from which the magistrate could determine that there was probable cause for believing that the items listed were actually located in the Browns' apartment. See Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923). The affidavit of Officer Wood, on which the magistrate determined that probable cause for the search existed, made reference to Officer Wood's personal observations of the victim's bleeding injuries and the blood oozing from his ear; his earlier observations of bed linens in the victim's room stained with what appears to be blood, as well as a sponge mop and dishpan of water in the living room; his conversation with Mack Brown at 6:30 p.m. on April 10, in which the defendant admitted striking the victim and attempting to clean up blood; and his conversation with Evajean Brown, in which she stated that her husband beat Eddie both upstairs and downstairs on the night he died. The search warrant authorized a search for "blood stains and a mop, dishpan and water containing human blood ... located at Apartment 62, Cedar Springs Apartments." There were ample grounds, pursuant to T.C.A. §§ 40-6-101 et seq., for the issuance of a search warrant to recover these items.

        128
        4. Discovery Dispute
        129

         

        130

        The defendant challenges the trial court's order that counsel for Mack Brown and counsel for Evajean Brown could not share the information obtained from the state by the discovery motion filed by counsel for Evajean Brown pursuant to Rule 16 of Tennessee Rules of Criminal Procedure. Further, the defendant asserts that the trial court erred in prohibiting counsel for Mack Brown from viewing the information in the possession of counsel for Evajean Brown after all proceedings concerning her were complete.

        131

        Mack and Evajean Brown were jointly indicted but were represented by separate counsel. Counsel for Evajean Brown requested discovery from the state pursuant to Rule 16(a)(1)(C) and (D) of the Tennessee Rules of Criminal Procedure. This request triggered the state's right to reciprocal discovery. Id. However, counsel for Mack Brown did not request discovery under this rule. On April 14, 1987, the trial court entered a blanket order prohibiting counsel for Evajean Brown and counsel for Mack Brown from transferring any items between themselves that had been received from the state pursuant to the single Rule 16 discovery request filed on Evajean Brown's behalf. Counsel for Mack Brown filed his objection to the order on April 20, 1987.

        132

        Mack Brown's motion to sever, which was filed on April 30, 1987, was granted by order filed May 5, 1987. Evajean Brown's trial, which began on September 14, 1987, [548] ended in a mistrial. The Court of Criminal Appeals later held that Evajean Brown could not be retried because of double jeopardy principles. State of Tennessee v. Evajean Brown, (Tenn. Crim. App. Knoxville, Dec. 20, 1988), 1988 WL 136600, perm. app. denied, May 8, 1989.

        133

        After these events, counsel for Mack Brown moved the trial court to rescind the order of April 14, 1987, but the trial court refused to allow counsel for Mack Brown to receive any information from Evajean Brown's counsel that had originated with the state, unless Mack Brown consented to reciprocal discovery by the state. Counsel for Mack Brown did not request that the information in question be reviewed by the trial court or submitted under seal for appellate review.

        134

        The state insists that the defendant improperly attempted to gain the benefit of Evajean Brown's full discovery motion while denying the state the reciprocal discovery to which it would have been entitled had he filed for Rule 16 discovery himself. We conclude that the prosecution has overstated the case to some extent. Trial courts, to be sure, have the discretion to enter orders necessary to insure compliance with Rule 16. Cf. State v. Bell, 690 S.W.2d 879 (Tenn. Crim. App. 1985); State v. Vilvarajah, 735 S.W.2d 837 (Tenn. Crim. App. 1987). However, to do so, reciprocal discovery must have already been triggered. Id. In this case, because the disclosure of items in the possession of counsel for Evajean Brown would not necessarily have triggered reciprocal discovery as to Mack Brown, the trial court's order should have been more selective with regard to disclosure.

        135

        Reciprocal discovery would only have been triggered if, by the disclosure of the items held by counsel for Evajean Brown, Mack Brown had gained access to information he could have gotten by filing his own request for full Rule 16 discovery. But, Evajean Brown's request would only result in discovery by her of items which were material to the preparation of her own defense, intended for use by the state in its case in chief against her, or obtained from or belonging to her. T.R.Crim.P. Rule 16(a)(1)(C). Hence, items subject to full Rule 16 discovery by Mack Brown would not necessarily have been subject to discovery by Evajean Brown. Obviously, disclosure of Evajean Brown's holdings would not have equated with full Rule 16 discovery by Mack Brown.

        136

        The importance of unrestricted discovery in preparation for trial is obvious. Indeed, a prosecutor's failure to comply with discovery can contribute to a finding of reversible error. State v. Benson, 645 S.W.2d 423 (Tenn. Crim. App. 1983). However, the burden rests on the defense to show the degree to which the impediments to discovery hindered trial preparation and defense at trial. Because of the failure of defense counsel to include the materials they sought from counsel for Evajean Brown in the record, we have no way of determining whether access to these materials would have had an impact on the outcome of the trial. Without this determination, we cannot find reversible error.

        137
        5. Motion for a Morgan Hearing
        138

         

        139

        The defendant insists that the trial court erred in denying the defendant's motion for a hearing pursuant to State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). At the time of trial in this case, the decision to hold such a hearing rested solely in the discretion of the trial court. State v. Martin, 642 S.W.2d 720 (Tenn. 1982). In view of the fact that there was no indication that the defendant would testify or that he might have prior convictions that could be used to impeach his testimony, we find no abuse of discretion in the trial court's decision not to hold a Morgan hearing.

        140
        6. Amendment of the Indictment
        141

         

        142

        The defendant next argues that his right to a fair trial was violated when the trial judge granted the state's motion to remove the word "intentionally" from the first-degree murder count returned against him. In view of the fact that we have reversed the defendant's conviction on this count, we hold that the question has been rendered moot.

        143

        [549]

        144
        7. Jury Selection
        145

         

        146

        The defendant questions the excusal for cause or the failure to allow such an excusal for cause of several prospective jurors. These arguments are based on two points: the jurors' exposure to publicity about the case and the jurors' statements when questioned about their ability to follow the law as it relates to the imposition of the death penalty. Because the validity of the death penalty is no longer at issue in this case, the latter point is moot.

        147

        Moreover, we have reviewed the record of the selection of this jury and find no error with regard to the first point. Jurors need not be totally ignorant of the facts of the case on which they sit, and may sit on a case even if they have formed an opinion on the merits of the case, if they are able to set aside that opinion and render a verdict based on the evidence presented in court. State v. Sammons, 656 S.W.2d 862, 869 (Tenn. Crim. App. 1982). This determination of impartiality is a matter for the discretion of the trial judge. Id.

        148
        8. Opinion Testimony
        149

         

        150

        The defendant asserts that the trial court erred in allowing certain witnesses to testify outside the scope of their knowledge or expertise. Essentially, the defendant argues that witnesses not properly qualified as experts were allowed to testify as to their opinions in violation of the long-standing principles set forth in Cumberland Telegraph & Telephone Co. v. Dooley, 110 Tenn. 104, 72 S.W. 457 (1903), and formalized in Rule 701 of the Tennessee Rules of Evidence. Further, the defendant argues that otherwise properly qualified expert witnesses were improperly allowed to testify outside the area of expertise in which they had been qualified to testify. See State v. Wright, 756 S.W.2d 669 (Tenn. 1988).

        151

        The defendant takes issue specifically with the testimony of Leon Miller (the paramedic who attempted to resuscitate Eddie) about the cause of bruises around Eddie's eyes and the length of time it would take for these bruises to develop. Miller identified Exhibit #2 as being a photograph of the child whom he attempted to revive. He then voluntarily stated that the photograph did not show the child's "coon eyes" as distinctly as they appeared when he treated him. He managed to testify that bruising around the eyes is indicative of skull trauma before defense counsel objected to his testimony. The trial court overruled this objection, as well as defense counsel's later objection to Miller's testimony that he understood that such bruising could take two to seven hours to develop.

        152

        Miller testified that on April 10, 1986, he was a paramedic with an ambulance company. To become a paramedic, he recounted, he initially worked as an emergency medical technician doing basic life support such as cardiopulmonary resuscitation and mouth-to-mouth resuscitation. As a paramedic he was qualified, after approximately two years further training, to do more advanced types of life support. No motion was made to have Miller qualified as an expert in any field, and no cross-examination in voir dire of his expert qualifications was conducted.

        153

        The defendant also takes issue with the testimony of Mary Ann Purvis (a nurse involved in Eddie's care at the hospital) about an injury on Eddie's left big toe. Purvis testified that in her opinion the injury was caused by a cigarette burn. After defense counsel objected, the state elicited testimony that her opinion was based on her prior experiences working in an emergency room for six years, where, she said, she had seen cigarette burns of this nature on occasions "too numerous to count." As with Miller, there was no voir dire conducted to establish Purvis's expert qualifications, and no motion was made to have her qualified as an expert in any field.

        154

        The distinction between an expert and a non-expert witness is that a non-expert witness's testimony results from a process of reasoning familiar in everyday life and an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field. Phillips v. Tidwell, 26 Tenn. App. 543, 174 S.W.2d 472, 477 (1943). The determination of whether a [550] witness is qualified to give expert testimony lies in the sound discretion of the trial court. See Cordell v. Ward School Bus Mfg. Inc., 597 S.W.2d 323, 328 (Tenn. App. 1980).

        155

        In this case we are constrained to view both Miller and Purvis as non-expert lay witnesses, if for no reason other than the fact that the record is devoid of a judicial determination of their areas of expertise, or even a motion for such a determination. On such an underdeveloped record, we cannot hold that Miller and Purvis were qualified to give testimony that arguably required special expertise.

        156

        Generally, non-expert witnesses must confine their testimony to a narration of the facts based on first-hand knowledge and avoid stating mere personal opinions or their conclusions or opinions regarding the facts about which they have testified. Blackburn v. Murphy, 737 S.W.2d 529, 531 (Tenn. 1987). This rule preserves the province of the jury as the fact-finding body designated to draw such conclusions as the facts warrant. Id. An exception to this general rule exists where testimony in an opinion form describes the witness's observations in the only way in which they can be clearly described, id. at 532, such as testimony that a footprint in snow looked like someone had slipped, National Life & Accident v. Follett, 168 Tenn. 647, 80 S.W.2d 92 (1935), or that a substance appeared to be blood. State v. Mabon, 648 S.W.2d 271, 274 (Tenn. Crim. App. 1982). We conclude that the nurse's testimony that the injury on the victim's foot looked like a cigarette burn arguably falls into this exception. It follows that witness Purvis's testimony was properly admitted.

        157

        On the other hand, the non-expert testimony presented by the paramedic, Miller, was technically inadmissible. His opinion as to the source of Eddie's bruised face does not fall within the exception for opinion testimony used to describe observations such as those in Follett or Mabon. His conclusory opinion was not the type of opinion testimony that lay witnesses should be allowed to give, but rather called for specialized skill or expertise. Because Miller was not qualified to give expert opinion testimony, his testimony should not have been permitted. We cannot, however, hold this to be reversible error. There was ample evidence of skull trauma without Miller's reference to "coon eyes."

        158

        With respect to those witnesses who were properly qualified as experts but who the defendant alleges were allowed to testify outside their field of expertise, we have reviewed the record and find no error.

        159
        9. Admissibility of Extrajudicial Statements
        160

         

        161

        The defendant asserts that the trial court erred in allowing the testimony of witnesses who said that the Browns had told them Eddie sustained his injuries in a fall downstairs. Both of the witnesses who testified to this effect spoke with Evajean and Mack Brown at the same time and could not remember which one of them said that Eddie fell down the stairs. The defendant contends that this testimony was inadmissible because the witnesses could not say with certainty that Mack Brown made the statement in question.

        162

        The defendant erroneously relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in contending that this evidence should have been excluded. The defendant asserts that the use of these statements at trial was akin to the use, at trial, of a co-defendant's confession containing statements tending to incriminate the non-confessing defendant. The theory for the exclusion of such confessions under Bruton is that the confrontation clause of the United States Constitution is violated when such a confession of a co-defendant (who denies the confession or does not testify) is admitted into evidence, because the inculpated non-confessing defendant is denied the opportunity to cross-examine the maker of the inculpating statements.

        163

        This case is distinguishable from the problem addressed in Bruton. Although indicted together, the Browns were tried separately. The statements are not in the nature of a confession, and they do not [551] facially indicate that at the time they were made Evajean Brown blamed Mack Brown for Eddie's death. At most, they indicate that Mack and Evajean Brown acted together to try to conceal the true source of Eddie's injuries. Mack Brown's rights under the confrontation clause were not violated, because he had the opportunity to cross-examine the witnesses on the crucial issue of whether these statements were made and, if so, whether he was himself present and aware of the effort to explain Eddie's injuries.

        164

        These statements were certainly relevant, not because of their specific content, but because their very existence indicates that an attempt was made to explain away the source of Eddie's injuries. Moreover, there is no hearsay problem. A statement introduced to prove only that it was made, regardless of the truth or falsity of the statement, does not violate the rule against hearsay. Cannon v. Chadwell, 25 Tenn. App. 42, 150 S.W.2d 710, 712 (1941).

        165
        10. Admissibility of Photographs
        166

         

        167

        The defendant contends that the trial court erred in admitting various photographs of the victim's body and in allowing these photographs to be presented repeatedly to the jury. Although the defendant concedes that the photographs may be relevant and material to establish the elements of the offense, State v. Harbison, 704 S.W.2d 314, 317-318 (Tenn. 1986), he argues that in this case the prejudicial effect of the photographs substantially outweighs their probative value, under the standards of State v. Banks, 564 S.W.2d 947 (Tenn. 1978).

        168

        Nine close-up color photographs of Eddie's body were introduced and presented to the jury. Exhibit #2 shows Eddie's face and the front of his right ear. Exhibit # 4 shows the right side of Eddie's head with a hand folding the top of his right ear over to expose the lacerations behind and above his right ear. Exhibit # 5 is a photograph of Eddie's body from the bottom of his rib cage to just above his knees, showing bruises on his body and his genitals. Exhibit # 6 shows the bruises on Eddie's lower back and buttocks. Exhibit # 12 shows Eddie's left foot and left leg from just below the knee. This photograph depicts the injury on Eddie's left big toe. Exhibit # 13 shows the left side of Eddie's face, his left ear and the top of his chest. Exhibit # 14 shows the back of Eddie's head and neck as his body is lying on its right side. This photograph shows the injuries to his neck, his left shoulder blade, the back of his left ear and the back of his right shoulder. Exhibit # 15 shows Eddie's body from the waist down to just above the right knee. In this photograph, Eddie is wearing a diaper and his right leg is bent at the hip to show the side and back of his leg. Exhibit # 15 shows Eddie's neck, chest, and left arm to just below his elbow.

        169

        Each of these photographs is clearly relevant and admissible as evidence of the brutality of the attack and the extent of the force used against the victim, from which the jury could infer malice, either express or implied. State v. Banks, supra, 564 S.W.2d at 950. Each is a unique representation of a different portion of the victim's body. No two photographs depict the same injuries. Although oral testimony was also presented, graphically describing the injuries independent of these photographs, we cannot say that there was a clear showing of abuse of discretion in the admission of these photographs. Id. at 949.

        170

        The defendant also argues that, even if the photographs were relevant and admissible, their repeated presentation to the jury during the testimony of different witnesses resulted in prejudice that outweighed the probative value of their repeated use. In State v. Banks, supra, 564 S.W.2d at 951, we adopted Rule 403 of the Federal Rules of Evidence, which provides that even relevant evidence should be excluded if its prejudicial effect substantially outweighs its probative value. Rule 403 further provides that probative value may be outweighed by the needless presentation of cumulative evidence. Thus, the cumulative effect of the repeated presentation of the same photographs could constitute prejudice outweighing their probative value, [552] even if an isolated photograph was otherwise admissible.

        171

        This determination rests in the sound discretion of the trial judge, however, as does the determination to admit or limit any cumulative evidence. See Shields v. State, 197 Tenn. 83, 270 S.W.2d 367 (1954); State v. Reynolds, 666 S.W.2d 476 (Tenn. Crim. App. 1984). In this case, the record does not indicate an abuse of discretion in the admission of the photographs in question.

        172
        11. Admissibility of Other Exhibits
        173

         

        174

        The defendant complains about the admission of certain items of physical evidence, on the grounds that the state did not establish the relevance of this evidence and that the trial judge should have excluded it based on its prejudicial impact on the jury. We have reviewed this evidence and find no error in its admission. The paper bag containing vomit was relevant in light of testimony that the autopsy of Eddie's lungs revealed that he had aspirated vomit. Likewise the other items complained of — the mop, dishpan, and water, and the items of clothing — were relevant given the defendant's statement that he had attempted to clean up after Eddie had urinated, defecated, and bled on the floor.

        175
        12. Limitations on Expert Testimony
        176

         

        177

        The defendant alleges that the trial judge abused his discretion by restricting the testimony of defense witness Dr. Eric Engum. Engum, a clinical psychologist, testified during the guilt phase of the trial in support of the defendant's insanity theory and therefore touched on the defendant's mental retardation. During the state's cross-examination, the trial court admonished Engum on three occasions to respond to the questions without volunteering additional testimony. When the defense objected to the second admonition, requesting that Engum be allowed to explain his responses to the prosecutor's questions, the trial judge responded:

        178
        He can explain if he needs to explain, but I don't want all of this in the record. This jury doesn't need to hear this. Proceed.
        179

         

        180

        In making yet another admonition, the trial judge said, "Doctor, this is the third time. I've warned you. I will not warn you one more time without some action."

        181

        The trial court must be given reasonable latitude in controlling the course of the trial. Cordell v. Ward School Bus Mfg. Inc., 597 S.W.2d 323 (Tenn. App. 1980). Having reviewed the entire record of this case, we cannot say that the trial judge abused his discretion in the manner in which he directed the course of Engum's testimony. If the trial judge did not consistently maintain a tone of patient impartiality toward a particular witness, as the defense maintains, that fact would be regrettable, of course. But it might not be subject to adequate review on appeal, simply because of the limitations of a written record. In any event, we cannot say, as the defense would have us conclude, that the trial court's demeanor in this case adversely affected the credibility of the witness. Dr. Engum's credibility was more likely affected by his total lack of prior experience as a courtroom witness than by the trial court's comments on his testimony.

        182
        13. Comments During Closing Argument
        183

         

        184

        The defendant argues that the trial court erred in the wide latitude given to the state during closing argument. Having reviewed the entire record in this case, including the arguments of the prosecutor and defense counsel, we can find no abuse of discretion in the manner in which the trial judge controlled closing argument. See State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978) (standard of review is abuse of discretion). The prosecutor is warranted in making an argument to the jury when that argument is supported by evidence introduced at trial. State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). Further, the prosecutor may state an ultimate conclusion which would necessarily follow if the testimony of the prosecution witnesses were believed by the jury. Id. In this case, the prosecutor's argument was well-grounded [553] in the evidence presented at trial, recounting that evidence and the permissible inferences that could legitimately be drawn from it.

        185
        14. Jury Instructions
        186

         

        187

        The defendant challenges the jury instructions given in the guilt phase of the trial in several respects. First, he asserts that the trial court erred in giving the following charge:

        188
        The failure of the defendant to remember the details of the alleged crime or to remember any of the facts leading up to and surrounding the commission of the alleged crime is in itself no defense to this charge.
        189

         

        190

        The state requested that an instruction on amnesia be given, in light of the defendant's statement that he remembered spanking the child only with the open part of his hand. With reference to the events of April 10, 1986, he stated, "I don't have comprehension of fully remembering what, of what might have took or did take place... ." He described the period of time during which Eddie was apparently beaten as "a blank" in his mind and stated that he did not fully come back to his senses until after he arrived at the hospital.

        191

        The state initially requested an instruction that "amnesia alone" is not a defense to a criminal charge. The defense complained to the trial court that the use of the words "amnesia alone" would constitute a comment on the evidence by the court, as it would unduly characterize the evidence presented on the defendant's mental condition. On appeal, the defendant complains that the instruction as given was misleading and prejudicial because, in the context of the defense's insanity theory, an instruction relating to amnesia was irrelevant to the issues at trial.

        192

        The trial judge has a duty to give a complete charge of the law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). Although the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge, State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975), the trial judge may also be required to charge the jury on matters not disputed by the defense. See Taylor v. State, 582 S.W.2d 98, 100 (Tenn. Crim. App. 1979).

        193

        The statement made by the defendant that was presented to the jury raised questions about his memory of the events surrounding his son's death. There was no error in giving an instruction necessitated by this evidence.

        194

        The defendant also alleges that the trial court erred in refusing to give a jury instruction on the lesser included offense of voluntary manslaughter. The trial court instructed the jury on the elements of first-degree murder and the lesser included offenses of second-degree murder and involuntary manslaughter.

        195

        At the time of trial, manslaughter was defined by statute as "the unlawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act." T.C.A. § 39-2-221. Before a defendant can be found guilty of voluntary manslaughter, there must be evidence that he acted in a state of passion sufficient to obscure his reason and that the passion was produced by reasonable and adequate provocation. Freddo v. State, 127 Tenn 376, 155 S.W. 170 (1912); State v. Morgan, 541 S.W.2d 385 (Tenn. 1976); Howard v. State, 506 S.W.2d 951 (Tenn. Crim. App. 1973).

        196

        The defendant insists that a charge of voluntary manslaughter was appropriate here, citing by analogy Capps v. State, 478 S.W.2d 905 (Tenn. Crim. App. 1972). In Capps, the defendant became "ungeared, so to speak, with the birth of [her] child." Id. at 906. Although her husband sought medical help for the mother and placed the baby with both sets of grandparents, the child's life came to a tragic end when her mother killed her after she had been grabbing at her legs and dress and running through the house. Id. The mother was charged with second-degree murder and [554] convicted of voluntary manslaughter. Although the Court of Criminal Appeals noted that the mother was in an excited, generally distraught emotional state, brought about at least in part by the child's behavior, id. at 907, the court did not address whether the child's actions constituted the "reasonable and adequate provocation" element of voluntary manslaughter. Rather, the court based its holding on the distinction between voluntary and involuntary manslaughter. Because the homicide was a killing with intent to inflict the injury that produced death, as evidenced by the severity of the child's injuries, the court affirmed the jury's verdict of voluntary manslaughter. Id. Thus the defendant's reliance on Capps in this case is not well placed, because in Capps the rationale of the Court of Criminal Appeals did not rest on provocation.

        197

        Moreover, we believe that it is a virtual legal impossibility for a small child to commit an act that would amount to provocation sufficient to make his subsequent death voluntary manslaughter rather than murder. Because the evidence presented at Mack Brown's trial failed to satisfy the elements of voluntary manslaughter, the trial court did not err in refusing to instruct on this lesser included offense. State v. Mellons, 557 S.W.2d 497 (Tenn. 1977); Owen v. State, 188 Tenn. 459, 221 S.W.2d 515 (1949). To the extent that this holding conflicts with the language or the result in Capps v. State, supra, that opinion is expressly overruled.

        198
        Conclusion
        199

         

        200

        For the reasons set out above, we reverse the defendant's first-degree murder conviction, modify the judgment of the trial court to reflect his conviction of murder in the second degree, and remand the case to the trial court for resentencing.

        201

        REID, C.J., and DROWOTA, O'BRIEN and ANDERSON, JJ., concur.

        202

        [1] Eddie's mother was charged as well, but her trial ended in a mistrial and because of double jeopardy considerations, she cannot be retried. See section 4, infra.

        203

        [2] There is some question as to whether this was actually a fracture or simple growth plates in the skull which had failed to join, making the normal suture resemble a fracture.

        204

        [3] The significance of this testimony is that the child could have sustained these injuries at 4 a.m. (when a neighbor heard the fight between his parents) and not have begun the process of vomiting and dying until just before the ambulance was called at 9 a.m.

        205

        [4] The neurological surgeon testified that "contrecoup" is French for "back and forth."

        206

        [5] There was testimony that Mack Brown smoked cigarettes but Evajean Brown did not. The nurse who characterized this wound as a cigarette burn did not make a notation to this effect in Eddie's chart. For further discussion on this point, see section 8, infra.

        207

        [6] For further discussion of the defendant's IQ scores, see section 15, infra.

        208

        [7] Acts 1829, Ch. 23, § 3 provides in pertinent part: "All murder which shall be perpetrated by means of poison, lying in wait or by any other kind of willful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree."

        209

        [8] At common law and in Tennessee prior to 1829, the only penalty provided for murder was death; the creation of second-degree murder introduced the possibility of a life sentence upon conviction.

        210

        [9] See, e.g., Winton v. State, 151 Tenn. 177, 268 S.W. 633, 638 (1924), in which the Court noted: "The distinction between the two degrees of murder is well defined by our statutes, and the decisions of this court. If those charged with the enforcement of the criminal laws would not insist upon convictions for first-degree murder when the facts do not justify it, the result would be more affirmances in this court, and the trouble and expense of new trials would, in many instances, be avoided."

        211

        [10] "Passion" has been defined as "[a]ny of the emotions of the mind [reflecting] anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection." Winton v. State, 151 Tenn. 177, 268 S.W. 633, 637 (1925), repeated in State v. Bullington, 532 S.W.2d 556, 560 (Tenn. 1976).

        212

        [11] "Focus" was explicitly repudiated as a basis for determining whether a suspect is "in custody" for purposes of Miranda in Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976).

      • 2.1.4 Williams v. State

        1
        70 So.3d 726 (2011)
        2
        Joseph Nathan WILLIAMS, II, Appellant,
        v.
        STATE of Florida, Appellee.
        4
        No. 4D09-717.
        5

        District Court of Appeal of Florida, Fourth District.

        6
        September 21, 2011.
        7

         

        8

        [727] Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

        9

        Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

        10

        GROSS, J.

        11

        Joseph Williams appeals his conviction for the first-degree murder of his estranged wife. At the jury trial, Williams' defense was that he acted in the heat of the moment, so the killing was not premeditated. On appeal he argues that the state did not establish premeditation and that the trial court abused its discretion in admitting two photographs of his wife's body. Because the evidence presented a jury question on premeditation, and the photographs were relevant and not unduly prejudicial, we affirm.

        12
        I. FACTS
        13

         

        14

        Williams and his wife were married in late November 2006. They had a three-year-old [728] son. Williams and his wife began experiencing problems soon after the marriage. In December 2006, Williams told a former girlfriend with whom he had recently reestablished contact that "if she [the wife] continued the physical abuse he would retaliate and kill her or something like that." The former girlfriend did not remember the exact words Williams used, but was otherwise certain of the content of the statement.

        15

        The bulk of the state's evidence detailed Williams' movements on Saturday, January 20, 2007, the day the wife died, and the weeks thereafter. Relevant here is that Williams was with the wife and their son early that Saturday morning. At that time, Williams called the police to request that an officer stand by as he went home to collect some belongings. Williams called the same officer a couple of hours later, reporting he was being kicked out of the home. The officer responded, but he determined there was no violence and left.

        16

        At around noon, while driving in a white van on the highway with his son and wife, Williams ran out of gas. A friend met up with Williams to bring gas and, while Williams filled the tank, his wife and son remained in the vehicle. With a full tank, the three then headed over to an area where some of Williams' friends lived. Williams, along with his wife and son, went back and forth between the houses of two of Williams' friends for a while. Eventually, Williams returned to one friend's house with his son, but without his wife. Williams, who was in a sweaty T-shirt and chain-smoking, then left in the white van, leaving his son at the friend's house.

        17

        Williams asked the friend to drop his son off at the house of the wife's mother. The mother had received a phone call from her daughter at around noon that day. The wife had reported that she was with Williams and their son at a park. Although the wife had said she would be leaving Williams and the son to come to her mother's house, the wife never arrived. The mother later received two calls from her daughter's cell phone; both times it was Williams. Williams said, "I need you to watch [my son] for me for a couple of hours." The mother asked, "Where's [the wife]?" Williams answered, "She's gone." The mother persisted, "Gone, where?" Williams said, "I don't know, she's gone."

        18

        The mother became concerned about the wife and began calling her daughter's cell phone. No one picked up. The mother called the wife's friends; none had seen or heard from her. The mother made further efforts to track the wife down, to no avail. She called the police on Sunday, the 21st, and filed a missing person's report. She told the assigned officer that the last person she knew her daughter to be with was Williams. According to other witnesses, Williams remained in Broward County until around January 23.

        19

        On February 5, a construction manager found the wife's body at a work site and called the police. The Broward County Sheriff's Office responded to the scene and removed the body from the wooded area. The body was wrapped inside a cloth mattress cover, with a zipper on one end. One foot was sticking out of the cover, and it appeared an animal had gnawed on the foot. The detectives unzipped the cover and exposed the body. From the neck up, the body "was almost completely skeletonized" due to decomposition. They were able to identify the body because the wife's purse was inside the cover. Williams and the state stipulated that this body was the wife's.

        20

        Williams was apprehended in Tallahassee. Although he was arrested for outstanding traffic warrants, officers from Broward told Williams that they wanted to talk to him about his missing wife. They [729] transported him to the Leon County Sheriff's office. After they read him his rights, Williams agreed to speak with the officers. Seeing that he was visibly upset, the officers went into the interrogation room to ask if he was okay.

        21

        Immediately, Williams told the officers, "I killed [my wife]." They asked Williams how he killed her. Williams responded, "I stabbed her in the neck" with a kitchen knife. When asked where, he said: "In the van, in the white van." The officers asked: "Joe, why, why did you do this?" Williams replied, "I lost it, I prayed before I did it, but I lost it." He continued, "I drove around with her body all day in the van. I took her, wrapped her up in a cover and I threw her next to some dumpsters over a fence." At the time of the interrogation, Williams had several cuts on his hands. When the officers asked him about the cuts, Williams explained that he received them from the knife he used to stab his wife. The white van was later found, and there were blood stains throughout. According to a stipulation, a blood test revealed that the blood found in the van was the wife's.

        22

        Dr. Joshua Perper, Broward County's chief medical examiner, saw the wife's body where it was found and observed the autopsy of her decomposed body the next day. Because maggots usually attack stab wounds, Dr. Perper concluded that the fact that the wife's neck was infested with a concentration of maggots revealed that there had been a neck injury. Indeed, the autopsy revealed trauma to the side of the neck, likely resulting from a stab wound.

        23

        The prosecutor showed Dr. Perper two photographs of the decomposing body, state's exhibits 33 and 34. Both of the photographs were taken where the body was found, but after law enforcement had removed the body from the wooded area. The first photograph, 33, showed the wife's back and buttocks. A tattoo of the name "Joe" was in the middle of the back just above the waistline. Maggots were scattered on portions of the body. The second photograph, 34, showed almost the entire front of the naked body. It is a gruesome photograph. Parts of the body are badly decomposed and infested with maggots, and most of the flesh from the neck up is gone, showing the skull. Dr. Perper testified that the photographs would assist him in describing the decomposition for the jury.

        24

        The prosecutor moved the photographs into evidence. Williams objected, arguing that they were extremely graphic, and that the photograph of the tattoo was superfluous because he had already stipulated to identity. The trial court overruled the objection, finding that the photographs would aid Dr. Perper in describing what the body looked like and what he did. The court also noted that the state was entitled to prove the manner and cause of death.

        25

        Dr. Perper used exhibit 33 to describe the decomposition of the wife's body. He used exhibit 34 to further describe the decomposition and, also, to explain that environmental factors caused the head area to experience more decomposition than the rest of the body. Additionally, Dr. Perper pointed to the neck area of the body and noted, "there was an area which looked like a defect which, in my opinion, was caused more slightly by a stab wound and this was confirmed later on and there were maggots which enlarged this area as maggots do, if there's a bleeding injury the fly will stay there." Dr. Perper could not say with certainty how many times the wife had been stabbed, only that she had been stabbed one or more times.

        26

        After the state rested, and in lieu of a motion for judgment of acquittal, Williams moved the trial court to reduce the first-degree murder charge to second-degree [730] murder or manslaughter. He argued that the state failed to introduce any evidence of premeditation. In response, the prosecutor asserted that the law does not require a certain amount of time to pass between the formation of intent and the killing, and that Williams' statement that he prayed before killing the wife suggested a sufficient amount of time had passed. The court agreed and further observed that if Williams had time to pray, he had enough time for reflection. Concluding that intent is a question of fact, the court denied Williams' motion.

        27

        The jury found Williams guilty of first-degree murder. The trial court sentenced Williams to life in prison without parole. It denied Williams' motion for a new trial on the two points he raises on appeal.

        28
        II. ANALYSIS
        29
         
        30
        A. Evidence of Premeditation
        31

         

        32

        Williams first argues that the state failed to establish premeditation, so the evidence against him was insufficient to prove first-degree murder. He contends his statement to the former girlfriend could not be construed as a threat, and his confession that he prayed before stabbing the wife was countered by the second part of the confession that he "lost it." We reject this argument. The confession and threat together established direct evidence of premeditation, which was further buttressed by circumstantial evidence.

        33

        A "motion to reduce charge" is governed by the same standards that govern a motion for judgment of acquittal, as both challenge the sufficiency of the evidence. See Pellot v. State, 582 So.2d 124, 125-26 (Fla. 4th DCA 1991). Thus, on appeal, we review the trial court's denial de novo and we will affirm if the conviction is supported by competent, substantial evidence. Floyd v. State, 913 So.2d 564, 571 (Fla.2005); Pagan v. State, 830 So.2d 792, 803 (Fla.2002). When a defendant moves for a judgment of acquittal or, as here, for a conviction on a lesser charge, he admits all the facts in evidence, and the trial court must draw all reasonable inferences in the state's favor. Floyd, 913 So.2d at 571. "If... a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain the conviction." Pagan, 830 So.2d at 803 (citation omitted).

        34

        The element at issue here is premeditation. "Premeditation is the essential element which distinguishes first-degree murder from second-degree murder." Coolen v. State, 696 So.2d 738, 741 (Fla. 1997) (citing Wilson v. State, 493 So.2d 1019 (Fla.1986)); see also § 782.04(1), Fla. Stat. (2007). "Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act." Asay v. State, 580 So.2d 610, 612 (Fla.1991) (citations omitted). Put differently, the defendant needs only enough time to allow him to reflect on the nature of the act. Perry v. State, 801 So.2d 78, 84 (Fla.2001).

        35

        Williams contends that this case involves only circumstantial, indirect evidence. That is usually true of cases turning on premeditation—a matter involving the internal processes of the defendant's mind. In such a situation, the state's evidence must satisfy a special, more stringent standard. This case, however, involves direct evidence, as "[a] confession is direct, not circumstantial evidence." Woodel v. State, 804 So.2d 316, 321 (Fla.2001). Accordingly, the normal standard articulated above applies.

        36

        In Woodel, the supreme court held that the defendant's confession—"I was hoping [731] to hit [the victim] on her head to make her pass out, and then I was going to leave. I thought that's what would happen if you got hit in the head, you know"—was direct evidence of premeditation because it "indicated that he had reflected on his actions prior to killing [the victim]." Id. at 321. Similarly, here, Williams admitted he had prayed before killing his wife, which indicates he had a fully formed conscious purpose to kill her, and enough time to reflect on the nature of the act. Williams attempts to minimize the prayer by combining it with the statement that he "lost it," and concluding that the prayer could have been a desperate attempt to remain in control. However, a rational trier of fact could still determine that the prayer does not eliminate the evidence of premediation.

        37

        The statement that Williams made to his former girlfriend one month before the murder provided further direct evidence of premeditation. In LaMarca v. State, 785 So.2d 1209 (Fla.2001), the supreme court confronted a defendant's similar statement. There, the defendant had told a witness five months before the murder that he was going to kill the victim. See id. at 1211, 1215. When that witness asked the defendant why, the defendant responded, "I'm gonna kill him." Id. at 1211. The court concluded that the statement was direct, competent, and substantial evidence that the defendant had a "`fully formed conscious purpose to kill.'" Id. at 1215 (quoting Norton v. State, 709 So.2d 87, 92 (Fla.1997)). Like he did with his confession, Williams tries to minimize his December statement by arguing that it was too conditional to be taken seriously. That, however, is a matter of the weight and not sufficiency of the evidence and, therefore, beyond the purview of a motion for judgment of acquittal or a motion to reduce charge.

        38

        In addition to those two pieces of direct evidence of premeditation, there is some circumstantial evidence. "Multiple stab wounds deliberately aimed at vital organs support a finding of premeditation for first-degree murder." Davis v. State, 26 So.3d 519, 530 (Fla.2009) (citation omitted). Here, Williams stabbed his wife in the neck. Although Dr. Perper could not determine how many times the wife had been stabbed, the multiple cuts on Williams' hands—received from the knife he used to stab her—permits the inference he made several stabbing motions at her.

        39

        There was sufficient direct and circumstantial evidence of Williams' premeditation to create a jury question. Accordingly, we hold that the trial court did not err in denying Williams' motion to reduce the charge from first-degree to second-degree murder.

        40
        B. Photographs of the Victim's Body
        41

         

        42

        In his second issue, Williams argues that the trial court abused its discretion when it admitted into evidence the photographs of his wife's body. He argues that they had no relevance because the body was too decomposed to show the cause of death and, with reference to the photograph showing the "Joe" tattoo, because the parties had stipulated to the victim's identity. Alternatively, Williams argues that if they were relevant the photographs were so gruesome and inflammatory that their prejudice substantially outweighed their probative value. We disagree, because the photographs were relevant and not unduly prejudicial.

        43

        We review the trial court's admission of the photographs for an abuse of discretion. Doorbal v. State, 983 So.2d 464, 497 (Fla. 2008). The Florida Supreme Court articulated the relevant analysis in Douglas v. State:

        44
        The test for admissibility of photographic evidence is relevancy rather [732] than necessity. Crime scene photographs are considered relevant when they establish the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. This Court has upheld the admission of autopsy photographs when they are necessary to explain a medical examiner's testimony, the manner of death, or the location of the wounds.
        45
        However, even where photographs are relevant, the trial court must still determine whether the "gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jur[ors] and [distract] them from a fair and unimpassioned consideration of the evidence." In making this determination, the trial court should "scrutinize such evidence carefully for prejudicial effect, particularly when less graphic photos are available to illustrate the same point." As we explained in Almeida v. State, 748 So.2d 922, 929 (Fla. 1999), the relevancy standard "by no means constitutes a carte blanche for the admission of gruesome photos."
        46

         

        47

        878 So.2d 1246, 1255 (Fla.2004) (alterations in original) (all citations but one omitted).

        48

        Exhibits 33 and 34 were relevant for the same reasons the photograph in Douglas was relevant. In Douglas, the trial court admitted a photograph of the victim's body "as she was found at the crime scene." Id. The supreme court found that the photograph was relevant because it showed how the "body appeared at the time the police and [the associate medical examiner] arrived on the scene." Id. at 1255-56. Additionally, the medical examiner "referred to this photograph when explaining his initial impressions and assessment of the injuries sustained by [the victim]." Id. at 1256.

        49

        Here too the photographs depicted the wife's body at the scene of its discovery. The photographs aided Dr. Perper in describing the condition of the body when it was found and his initial impressions of the wife's injuries, despite the decomposition. These impressions led Dr. Perper to conclude that the wife likely died of a stab wound to the neck—the manner of her death—contrary to Williams' argument that the body was too decomposed to reveal the cause.

        50

        Exhibit 33, the photograph depicting the tattoo, was relevant for the additional reason that it went toward establishing the identity of the body. Contrary to Williams' argument, it is not significant that the parties had stipulated to the identity of the victim, or that he did not dispute the manner of death. As we stated in Gryczan v. State, 726 So.2d 345, 347 (Fla. 4th DCA 1999), "regardless of the stipulation [of identity and cause of death], the state is not relieved of the burden of proving the elements of defendant's guilt." See also Foster v. State, 369 So.2d 928, 930 (Fla.1979) ("A defendant cannot, by stipulation as to the identity of a victim and the cause of death, relieve the state of its burden of proof beyond a reasonable doubt.").

        51

        Although the photographs were relevant, we must next determine whether their probative value was substantially outweighed by their prejudicial effect. See § 90.403, Fla. Stat. (2007). The photographs showed advanced decomposition, including maggot infestation. But, "[t]he mere fact that [the] photographs may be gruesome does not necessarily mean they are inadmissible." Harris v. State, 843 So.2d 856, 864 (Fla.2003). The photographs must be so gruesome and inflammatory that they create an undue prejudice [733] in the minds of the jurors and distract them from a fair and unimpassioned consideration of the evidence. We cannot say that the photographs, while gruesome, were so grisly that they prevented the jury from rationally analyzing the state's evidence.

        52

        Williams relies on Czubak v. State, 570 So.2d 925 (Fla.1990), but that case is distinguishable. In Czubak, the defendant challenged the admission of "several particularly gruesome photographs of the victim's body." Id. at 928. The photographs showed a victim who had been dead "at least a week" and was "severely decomposed and discolored." Id. They also showed that "portions of [the victim's] left arm and leg were missing, apparently eaten away by two small dogs," as well as a "leg bone exposed where the flesh had been eaten away." Id. The supreme court determined initially that the photographs "had little or no relevance." Id. at 929. What little relevance they may have had was greatly undermined by the fact the damage was caused "by factors apart from the crime itself": "the length of time she had been dead and the ravages of the dogs." Id. "Under these circumstances," the court wrote, "where the probative value of the photographs was at best extremely limited and where the gruesome nature of the photographs was due to circumstances above and beyond the killing, the relevance of the photographs is outweighed by their shocking and inflammatory nature." Id.

        53

        Williams contends the photographs were unduly prejudicial because the condition of the body was the result of the environment, maggots, and animal depredation— circumstances not attributable to him. To the contrary, the severe decomposition around the wife's neck was arguably the result of the crime: as Dr. Perper testified, maggots attack stab wounds first. Section 90.403 required the trial court to balance the photographs' relevance against their prejudicial nature. In Czubak, the limited relevance on one scale meant that the gruesomeness of the photographs on the other scale tipped the balance in favor of exclusion. That is not the case here. The gruesome nature of the photographs, attributable to Williams, did not outweigh their relevance to Dr. Perper's descriptions of the scene, his initial impressions, and the cause of death, and in establishing identity.

        54

        We hold that the trial court did not abuse its discretion in admitting exhibits 33 and 34.

        55

        Affirmed.

        56

        POLEN and DAMOORGIAN, JJ., concur.

    • 2.2 III.B.ii Murder v. Voluntary Manslaughter

      Distinctions within the group of crimes known as “homicide” depend on more than the different mens rea levels associated with a killing. Knowing that a person killed someone (act) with purpose or knowledge (mens rea) does not necessarily mean that the person committed “murder.” Criminal law sometimes takes additional circumstances into account when assigning blame.

      In the case of knowingly or purposefully killing someone, provocation or extreme emotional disturbance might mitigate the crime of murder down to voluntary manslaughter. As the cases below demonstrate, different courts have taken different approaches in defining whether and what circumstances might lessen the seriousness of an intentional killing.

      As you read these cases, consider the challenges that courts face when they downgrade a crime committed with the same basic act, result, and mens rea. Where and how do courts draw lines between which circumstances mitigate murder, and which circumstances don’t? In determining the effect of provocation or emotional distress, should courts look at a criminal’s individual nature, or hold him/her to an objective standard?

      • 2.2.1 Maher v. People

        1

        10 Mich. 212

        2
        William Maher
        3
        v.
        4
        The People.
        5

        Supreme Court of Michigan.

        6

        May 21, 1862.

        7

        In a prosecution for an assault with intent to murder, the actual infant to kill must be found, and that under circumstances which would make the killing murder.

        8

        Malice aforethought is as essential an ingredient of the offense of murder as the act of filling, and the presumption of Innocence applies equally to both ingredients of the offense. Hence the burden of proof, as to each, rests upon the prosecution.

        9

        If a homicide be committed under the influence of passion, or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, the offense is manslaughter only, and not murder.

        10

        To reduce the offense to this grade, the reason must, at the time of the act, he disturbed or obscured by passion to an extent which might render an ordinary man, of fair average disposition, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment

        11

        The question as to what is an adequate or reasonable provocation, is one of fact for the jury.

        12

        So also is the question whether a reasonable time had elapsed for the passions to cool, and reason to resume its control.

        13

        Indictment for assault with intent to murder one H. The prisoner offered evidence tending to show the commission of adultery by H. with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going into the woods together under circumstances calculated strongly to impress upon MB mind the belief of an adulterous purpose; that he followed after them to the woods; that they were seen not long after coming from the woods, and that the prisoner followed on in hot pursuit, and was informed on the way that they had committed adultery on the day before; that he followed H. into a saloon, in # state of excitement, and there committed the assault. Held, that the evidence was proper, as from it it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which would have given to the homicide, had death ensued, the character of manslaughter only. Held further, that these facto, and all the circumstances which led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was the real nature of the act, and the state of mind and intention with which it was done.

        14

        The statement of the prisoner in a criminal case is for the consideration of the jury, who may give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

        15

        Heard April 19th. Decided May 21st.

        16

        Error to Houghton District Court. The case is sufficiently stated in the opinion of CHRISTIANCY J.

        17

        Buel & Trowbridge, for plaintiff in error :

        18

        1. Malice aforethought is the grand criterion which distinguishes murder from all other killings.

        19

        The quo anima, or state of mind under which the offense is committed, is always a legitimate subject of inquiry: — Bish. Or. Z. § 227; 2 Ibid. § 616; Pond v. People, 8 Mich. 150; 3 Inst. 103; Burr. Cir. Ev. 282 and n.

        20

        Accordingly the appearance of an actual necessity for taking life in self-defense, though it in fact do not exist, may justify the act; insanity may excuse it, and sudden transport of passion may mitigate it to a lesser offense. Yet each of these circumstances is a state of the mind.

        21

        The definition itself of murder requires, that it be committed by a person of sound mind and memory, and with malice aforethought: — 3 Coke's Inst. 47; 4 Bl. Com. 195. Each of these ingredients is a fact; each puts in issue the state of the mind, and each must be passed upon by the jury.

        22

        In a case of murder it is always a proper subject of inquiry, whether the accused acted from deliberation and intelligence; whether he had command of his passions and acted from a mind undisturbed; or whether reason had lost in part its sway:— 2 Bish. Or. L. §§630, 631 and n; 1 East P. C. 222; Whart. Cr. L. §§ 983, 984; Burr. Cir. Ev. 284 and n.

        23

        It is a true test of manslaughter that the homicide be committed in a sudden transport of passion arising upon a reasonable provocation, and without malice. The law requires only a reasonable provocation. The authorities use the terms adequate, sufficient and reasonable, when applied to the provocation, as equivalent: — 1 East P. G. 232. Whart. Cr. L. § 987; 2 Bish. Cr. I. §630 and n; 11 Humph. 200. A reasonable provocation, is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.

        24

        By sufficient cooling time, is meant a reasonable time; therefore, each case depends on its own circumstances:— Whart. Cr. L. § 990; 2 Bish. Cr. L. § 641; 1 Speers, 384. A reasonable cooling time, is that for which a good reason can be given, and in which the sudden transport of passion might naturally and rationally, according to the laws of the human mind, pass away.

        25

        2. Acting on information: " When it becomes a subject of inquiry whether a person acted bona fide, prudently or wisely, the information and circumstances on the faith of which he acted, whether true or false, are original and material evidence. This is often illustrated in actions for malicious prosecution :"— Whart. Cr. X,. § 603; 1 Greenl. Ev. §101, and n. Such evidence bears directly upon the question of malice, and state of the prisoner's mind. In the following cases of alleged murder, the parties acted under provocation arising on information which was admitted in evidence: — Gases of Jarboe, of Mercer, and of Norman, cited in Sickles' case; Boyley's case, 2 Gro. 296; Mc Whirl's case, 3 Gratt. 594.

        26

        So evidence is often admitted of information communicated to the prisoner, of prior threats against him by the assailing party. See Pond's case, 8 Mich. 153.

        27

        3. As to the taking in the act; the law does not require that the husband stand by and actually see the adulterous act.

        28

        Adultery can always be proved by facts and circumstances. Those offered in this case transpired under the eyes of the accused; they tended to establish a taking in the act, within the meaning of the law. Would a blind man be without protection when his remaining senses leave no room for doubt?

        29

        A mistake may exist; still "the guilt of the accused must depend upon the circumstances as they appear to him." One may act in self-defense upon reasonable grounds for believing that the danger is actual and imminent, though he be mistaken:—Pond's case, 8 Mich. 150.

        30

        So too, an insane delusion or belief may exist, as to unreal facts, which will justify or excuse a homicide committed under its influence, if, being real, they would have that effect: — 1 JBish. Cr. L. § 235.

        31

        4. As to the res gestae: most of the matters offered and excluded immediately preceded the assault, tended to illustrate it, were directly connected with it as its cause, and with it constituted one continuing occurrence. They were, therefore, clearly admissible in evidence as belonging to the res gestae: — Potter's case, 5 Mich. 5; 1 Greenl. Ev. § 108 and n.

        32

        They belong to the class of concomitant circumstances, 'which include those immediately following and preceding the criminal act, as well as those strictly contemporaneous with it : — Burr. Cir. Ev. 368.

        33

        G. Upson, Attorney General, for the People :

        34

        If a husband find his wife in the act of adultery, and, provoked by the wrong, instantly takes the life of the adulterer, the homicide is only manslaughter. But to entitle it to this tender consideration, the detection must be in the very act. In all cases the party must see the act done, and if, after merely hearing of, or suspecting such an outrage, the wronged individual immediately takes vengeance on the other, by pursuing and killing him, his offense is murder : — Foster, 296; T. JRaym. 212; 1 Vent. 158; 1 East P. G. 234; 8 C. & P. 182; 2 C. & K. 814; 3 Graft. 594; 8 Ired. Law, 330; 1 Buss, on Or. 525 and 581; 2 Bish. Cr. Z. §638 and notes 2, 3 and 4; -Whar. Cr. L. § 984 and n. a, Uh ed.

        35

        The books which speak of the slaying of the adulterer by the husband as only manslaughter under certain circumstances, all instance the case where he finds the adulterer in the act of adulterous intercourse with his wife, and immediately kills him; but none of the cases speak of thus justifying the killing of a person by the husband, on account of information or suspicion of acts of adultery committed with his wife. Most of them expressly say that in all such circumstances the killing would be murder. See particularly on this point the language of the Court in 8 Car. & P. 182, and 2 C. & K. 814, above quoted.

        36

        CHRISTIANCY, J.

        37

        The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of his sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way t o the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner's wife had had sexual intercourse the day before in the woods- This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing—had death ensued—from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder ? If the homicide—in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.

        38

        Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facit reum nisi mens sit rea." People v Pond, 8 Mich. 150.

        39

        To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime c m not exist; and, as every man is presumed innocent of the offense with which h e is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense—to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, re«is equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, a^ presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist. I do not here speak of those cases in which the death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.

        40

        But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool End reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.

        41

        To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. " W e must therefore endeavor to discover the principle upon which the question is to be determined. It "will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition: State v. Hill, 1 Dev. & Sat. 491; Haile v. State, 1 Swan, 2 4 8; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent t o utter insanity, and, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to which the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree within which ordinary men have the power, and are therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty, that the act can be held criminal. There are many cases t o be found in the books in which this consideration, plain as it would seem t o be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was between murder and excusable homicide.

        42

        The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them—not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.

        43

        In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard—unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.

        44

        The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, lie may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular ca«e. ' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1800, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts which shall be hold to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.

        45

        The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. I n such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for the jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Hex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th e<£, § 990 and cases cited. I am aware there are many cases in which it has been held a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case should be very clear. And in cases of applications, for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.

        46

        It remains only to apply these principles to the present case. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner's wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the day before in the woods. I can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and "great perspiration" exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the j u r y to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.

        47

        But there is still a further reason why the evidence should have been admitted. N o other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the j u r y were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may be to establish guilt or innocence; but, until the whole is shown which might have any bearing one way or the other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness to the prisoner, be laid before the jury by the prosecution. They naturally constitute the prosecutor's case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by analogy, Holders case, 8 O. & P. 606; Stoner's case, 1 C & K. 650; Chapmarts case, 8 C. & P. 559; Orchard's case, Ibid, note; Roscoe Cr. Ev.). 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. I n the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. §29. But however this may be, it was clearly competent for the defendant to 6how the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected. After the evidence was closed, the prisoner was called by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner's counsel requested the Court to charge, that the prisoner's statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner's counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner's -wife; but that where there were facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner's statement in considering the evidence, and give it such weight as they thought proper.

        48

        The only substantial error of the Court in relation to this " statement," is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner's wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. " Yet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

        49

        The judgment should be reversed, and a new trial granted.

        50

        MARTIN C. J. and CAMPBELL J. concurred.

        51

        J.: MANNING

        52

        I differ from my brethren in this case. I think the evidence was properly excluded. To make that manslaughter which would otherwise be murder, the provocation—I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. PAKK J. in Regina v. Fisher, 8 C. & JP. 182, in speaking of the cause of provocation says, " I n all cases the party must see the act done." Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fislier, 8 G. cb P. 182; Regina v. Kelly, 2 C. d> K. 814; and State v. John, 8 Ired. 330.

        53

        I think the judgment should be affirmed.

        54

        Judgment reversed, and new trial ordered.

        55

         

        56

         

      • 2.2.2 Girouard v. State

        1

        321 Md. 532
        583 A.2d 718

        2
        Steven Saunders Girouard
        v.
        State of Maryland.
        3

        No. 65, Sept. Term, 1989.
        Court of Appeals of Maryland.
        Jan. 8, 1991.

        4

        Defendant was convicted before the Circuit Court for Montgomery County, James S. McAuliffe, J., of second [533] degree murder, and he appealed. The Court of Special Appeals affirmed, and defendant petitioned for certiorari. The Court of Appeals, Cole, J., held that: (1) words alone are not adequate provocation to mitigate murder to manslaughter, and (2) taunting words of wife in course of domestic argument were not provocation adequate to reduce second degree murder charge to voluntary manslaughter, as provocation was not enough to cause reasonable man to stab wife 19 times.

        5

        Affirmed.

        6

        [534] Nancy S. Forster, Asst. Public Defender and George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, J. Theodore Wiesman, Dist. Public Defender, all on brief), Baltimore, for petitioner.

        7

        Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran Jr., Atty. Gen., both on brief), Baltimore, for respondent.

        8

        Argued before MURPHY, C.J., ELDRIDGE and RODOWSKY, JJ., and COLE,[**] ADKINS,[*] BLACKWELL[*] and MARVIN H. SMITH (retired), Court of Appeals Judges, Specially Assigned.

        9

        COLE, Judge.

        10

        In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.

        11

        The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

        12

        [535] On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.

        13

        Joyce followed him into the bedroom, stepped up onto the bed and onto Steven's back, pulled his hair and said, "What are you going to do, hit me?" She continued to taunt him by saying, "I never did want to marry you and you are a fuck and you remind me of my dad."[1] The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, "What are you to do?” Receiving no response, she continued her attack. She added that she had filed charges against him in the Judge Advocate General's Office (JAG) and that he would probably be court martialed.[2]

        14

        When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she [536] had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a mistake, that she did not love him and that the divorce would be better for her.

        15

        After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood.  Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

        16

        When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.

        17

        At trial, defense witness, psychologist, Dr. William Stejskal, testified that Steven was out of touch  with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven's personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife's behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist, Thomas Goldman, [537] testified that Joyce had a “compulsive need to provoke jealousy so that she's always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”

        18

        Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.

        19

        Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant’s or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

        20

        The State counters by stating that although there is no list of legally adequate provocations, the common law developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation.

        21

        According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argu [538] ment ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge to voluntary manslaughter.

        22

        Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); State v.Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978); Davis v. State, 39 Md. 355 (1874). Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (Emphasis in original). Cox v. State, 311 Md. 326, 331, 534 A.2d 1333 (1988). See also, State v. Faulkner, supra; State v. Ward, supra; Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970).

        23

        There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. See State v. Faulkner, 301 Md. at 486, 483 A.2d 759. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. See, e.g., 40 C.J.S. Homicide § 50 at 915-16 (1944). Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. State v. Faulkner, 302 Md. at 486, 483 A.2d 759.

        24

        In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay [539] the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

        25

        1. There must have been  adequate provocation;
        2. The killing must have been in the heat of passion;
        3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
        4. There must have been causal connection between the provocation, the passion, and the fatal act.

        26

        Sims v. State, 319 Md. 540, 551, 573 A.2d 1317 (1990); Glenn v. State, 68 Md.App. 379, 406, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986); Carter v. State, 66 Md.App. 567, 571, 505 A.2d 545 (1986); Tripp v. State, 36 Md.App. 459, 466,374 A.2d 384 (1977); Whitehead v. State, Md.App. at 11, 262 A.2d 316.

        27

        We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be “’calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.’” Carter v. State, 66 Md.App. at 572, 505 A.2d 545 quoting R. Perkins, Perkins on Criminal Law at p. 56 (2d ed. 1969). The issue we must resolve, then, is whether the taunting words by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her.  Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.

        28

        [540] Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are adequate provocation. Most recently, in Sims v. State, 319 Md. 540, 573 A.2d 1317, we held that "[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray and standing alone, do not constitute adequate provocation.” Id. at 552, 573 A.2d 1317. That case involved the flinging of racial slurs and derogatory comments by the victim at the defendant. That conduct did not constitute adequate provocation.

        29

        In Lang v. State, 6 Md.App. 128, 250 A.2d 276, cert. denied, 396 U.S. 971, 90 S.Ct. 457, 24 L.Ed.2d 438 (1969), the Court of Special Appeals stated that it is “generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation." Id. at 132, 250 A.2d 276. Before the shooting, the victim had called the appellant "a chump" and “a chicken," dared the appellant to fight, shouted obscenities at him and shook his fist at him. Id. The provocation, again, was not enough to mitigate murder.

        30

        The court in Lang did note, however, that words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Id. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven's back and pull his hair, he could not reasonably  have feared bodily harm at her hands. This, to us, is certain based on Steven's testimony at trial that Joyce was about 5'1" tall and weighed 115 pounds, while he 6’2” tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not, under the analysis in Lang, constitute legally sufficient provocation.

        31

        Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation.  See, e.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); [541] West v. United States, 499 A.2d 860 (D.C.App.1985); Nicholson v. United States, 368 A.2d 561 (D.C.App.1977); Hill v. State, 236 Ga. 703, 224 S.E.2d 907 (1976); Cox v. State, 512 N.E.2d 1099 (Ind. 1987); State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985); State v. Hilliker, 327 A.2d 860 (Me. 1974); Commonwealth v. Bermudez, 370 Mass.438, 348 N.E.2d 802 (1976); Gates v. State, 484 So.2d 1002 (Miss.1986); State v. Milosovich, 42 Nev. 263, 175 P. 139 (1918); State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990); State v. Castro, 92 N.M. 585, 592 P.2d 185 (1979); State v. Best, 79 N.C.App.734, 340 S.E.2d 524 (1986); State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982). One jurisdiction that does allow provocation brought about by prolonged stress, anger and hostility caused by marital problems to provide grounds for a verdict of voluntary manslaughter rather than murder is Pennsylvania. See Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 733-84 (1987). The Pennsylvania court left the determination of the weight and credibility of the testimony regarding the marital stress and arguments to the trier of fact.

        32

        We are unpersuaded by that one case awash in a sea of opposite holdings, especially since a Maryland case counters Nelson by stating that "the long-smoldering grudge . . . may be psychologically just as compelling a force as the sudden impulse but it, unlike the impulse, is a telltale characteristic of premeditation." Tripp v. State, 36 Md. App. at 471-72, 374 A.2d 384. Aside from the cases, recognized legal authority in the form of treatises supports our holding. Perkins on Criminal Law, at p. 62, states that it is "with remarkable uniformity that even words generally regarded as 'fighting words' in the community have no recognition as adequate provocation in the eyes of the law." It is noted that

        33

        mere words or gestures, however offensive, insulting, or abusive they may be, are not, according to the great weight of authority, adequate to reduce a homicide, although committed in a passion provoked by them, from murder to manslaughter, especially when the homicide [542] was intentionally committed with a deadly weapon[.](Footnotes omitted)

        34

        40 C.J.S. Homicide §47, at 909 (1944). See also 40 Am. Jur.2d Homicide § 64, at 357 (1968).

        35

        Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Although a psychologist testified to Steven's mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that "there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law." Tripp v.State, 36 Md.App. at 473, 374 A.2d 384. The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the spouse.

        36

        We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.

        37

        JUDGMENT AFFIRMED WITH COSTS.

        38

        Judge ELDRIDGE concurs in the result only.

        39

        [**] Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

        40

        [*] Adkins, J., and Blackwell, J., now retired, participated in the hearing and conference of this case while active members of this Court but did not participate in the decision and adoption of this opinion.

        41

        [1] There was some testimony presented at trial to the effect that Joyce had never gotten along with her father, at least in part because he had impregnated her when she was fourteen, the result of which was an abortion.  Joyce's aunt, however, denied that Joyce's father was the of Joyce's child.

        42

        [2] Joyce lied about filing the charges against her husband.

      • 2.2.3 Commonwealth v. Miller

        1
        987 A.2d 638 (2009)
        2
        COMMONWEALTH of Pennsylvania, Appellee
        v.
        Dennis MILLER, Appellant.
        3
        No. 539 CAP
        4

        Supreme Court of Pennsylvania.

        5
        Submitted October 30, 2008.
        6
        Decided December 28, 2009.
        7

         

        8

        [645] Mary Elizabeth Hanssens, Samuel J.B. Angell, Defender Association of Philadelphia, for Dennis Miller.

        9

        Gerald P. Morano, Stuart B. Suss, Kelley Lynn Nelson, PA Office of Attorney General, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.

        10

        BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

        11
        OPINION
        12

         

        13

        Justice GREENSPAN.

        14

        This is a capital appeal from an order entered by the Court of Common Pleas of Chester County denying Appellant Dennis Miller's request for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546. Appellant was sentenced to death following his convictions for first-degree murder, rape, indecent assault, recklessly endangering another person, possessing an instrument of crime, and flight to avoid apprehension. These charges arose out of the stabbing murder of Appellant's wife in November of 1995. We affirm.

        15

        Briefly, the facts underlying appellant's convictions are as follows. On November 18, 1995, Appellant and his wife, Sherry, left their two children, Barbara and Dennis, with Appellant's mother, Agnes Miller, and went to a local bar called Trib's Waystation where they drank some beer and ingested methamphetamine. During the course of the evening Appellant became visibly upset and angry when his wife spoke to other men or used her cell phone.[1] The couple left the bar at about [646] 1:20 a.m.[2]

        16

        The next day, when Appellant and Sherry did not appear at Agnes Miller's home as planned, Ms. Miller became concerned, especially after no one answered the telephone at Appellant's residence. Ms. Miller twice drove to Appellant's home and observed that the doors to the residence were locked, no one answered the door, and that Sherry's car was not there. On November 20, 1995, after speaking to Sherry's mother and learning that she had not heard from Sherry, Ms. Miller filed a missing persons report with the Pennsylvania State Police. After the investigating trooper was unable to locate Appellant or his wife, he and other troopers went to their residence. Once there, they received permission from Ms. Miller to break into the residence. Upon doing so, they discovered the naked body of Sherry Miller lying on a bed in an upstairs bedroom. Her body was covered in blood, her legs were spread, her knees were bent, and there was a blood-covered pillow over her face. Upon discovering the body, the troopers left the residence to wait for a search warrant.

        17

        An autopsy of Sherry Miller's body indicated that she had died because she was stabbed over thirty times in her head, chest, arms, and hands. During the autopsy, the tip of a knife was retrieved from her shoulder. The knife from which the tip originated was found in a trash can. The forensic pathologist who performed the autopsy concluded from the position of the body, defensive wounds on the victim's hands, the lack of blood below her waist, and the lack of seminal material outside her vagina that she had been subjected to intercourse at the time of her death.[3]

        18

        An investigation of the residence resulted in the seizure of evidence tying Appellant to the crime including Appellant's bloody palm print on the pillow found covering the victim's face, Appellant's bloody fingerprint on a bandage, and a bloody footprint belonging to Appellant. In addition, investigators noted that the box spring from the bed on which the victim was found was broken and that the murder weapon had a bloody thumbprint on it. While the thumbprint had several characteristics consistent with Appellant's thumbprint, it contained insufficient identifying markers to be positively identified as having been placed on the knife by Appellant. Police also found a note in the kitchen, in Appellant's handwriting, that read:

        19
        Now I hope some of Sherry's whore friends learn something from this. I didn't want for it to go this far, but you people don't understand what she put me through. Some know, but they don't want to say something about her. Everybody told her everything I did, but me, I had to find out for myself what she did. All of my so-called friends f___ me one way or another. I had no friends. And I wish I had more time to get even with some of you assholes. I just want to say that you, Larry Brown, I would [647] have killed you, and you, Sean Smith, I told Donny one time before to tell you to leave her alone. I don't know if he did. And if he did, the next time somebody tells you something, you better do what they say. I would have got you too. I hope somebody in my family takes care of Barb, Dennis. I do love you all. I will see some of you in hell.
        20

         

        21

        Appellant fled the area following the crime. He was apprehended six months later in Florida because of a tip authorities received following a report about the crime on the television show "America's Most Wanted."

        22

        Following the denial of a motion to suppress and the waiver of his right to a jury trial, Appellant's capital murder trial commenced in September of 1997. At trial, the Commonwealth presented, inter alia, the testimony of Michael Torres who for a time was Appellant's cellmate while he was incarcerated on the aggravated assault charge. Torres testified that Appellant often spoke of killing his wife and that on the day Appellant was released from prison he stated, "I'll be back for killing my wife." The Commonwealth also presented the testimony of forensic pathologist, Richard Callery, M.D., who testified that the victim died because of the numerous stab wounds she sustained, which caused severe internal bleeding. The doctor also opined that the victim died while being subjected to forcible intercourse. In his defense, Appellant presented the testimony of a witness who stated that Torres had fabricated his testimony. At the conclusion of the trial, the trial court found Appellant guilty of the above enumerated offenses.

        23

        After Appellant waived his right to a jury trial, a penalty hearing was held before the trial court. At the penalty hearing the Commonwealth presented evidence on two aggravating circumstances, namely, that Appellant committed the murder during the perpetration of a felony, in this case rape, 42 Pa.C.S. § 9711(d)(6), and by means of torture, 42 Pa.C.S. § 9711(d)(8). Appellant thereafter asserted that two mitigating circumstances applied: Appellant lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3), and the "catch-all provision," 42 Pa.C.S. § 9711(e)(8). At the conclusion of the penalty hearing, the trial court found one aggravating circumstance, Section 9711(d)(6), and one mitigating circumstance, Section 9711(e)(3). Upon weighing the aggravating and mitigating circumstances, the trial court fixed the penalty at death. The court formally imposed that sentence on October 27, 1997, together with a consecutive sentence of ten to twenty years incarceration on the rape conviction.

        24

        Appellant appealed to this Court arguing that the trial court erred in denying his motion to suppress, the evidence was insufficient to support his convictions for rape and indecent assault, and the aggravating circumstance did not outweigh the mitigating circumstance. This Court affirmed the judgment of sentence on January 20, 1999. Commonwealth v. Dennis Miller, 555 Pa. 354, 724 A.2d 895 (1999). Appellant was represented by the same attorney at trial and on appeal.

        25

        On October 29, 1999, Appellant filed a pro se PCRA petition.[4] The PCRA court entered an order on November 8, 1999, granting Appellant an emergency stay of his death sentence pending disposition of his request for relief under the PCRA. The PCRA court also appointed two attorneys to represent Appellant. On June 7, 2000, Appellant filed an amended petition. He [648] thereafter filed several supplemental petitions and requests for discovery, which included a request for high-resolution scans of the negatives of the photographs of the crime scene. The PCRA court denied Appellant's request for the high-resolution scan of the negatives on July 19, 2002.

        26

        On October 17, 2003, the Commonwealth filed its answer and a pre-hearing memorandum requesting that the PCRA court dismiss some of Appellant's claims because they had been previously litigated. On December 31, 2004, the PCRA court, in a written opinion and order, granted in part and denied in part the Commonwealth's request.

        27

        An evidentiary hearing was conducted in late October 2003. In the months following the hearing, Appellant filed several motions asking permission to supplement the record with the victim's medical records and documents relating to Michael Torres. The PCRA court denied both requests in written orders filed January 19, 2005, and November 30, 2005. The Appellant also sought permission to present the testimony of Dr. Callery, the forensic pathologist who testified at trial. Appellant sought to present the doctor's testimony to clarify his trial testimony with respect to whether the victim had been raped. Following a hearing, Appellant's request was denied. On June 30, 2007, the PCRA court issued an opinion and order denying Appellant post-conviction collateral relief (PCRA Court Opinion, 6/30/07). Appellant thereafter timely filed the instant appeal.[5] The PCRA Court requested a Pa.R.A.P. 1925(b) Statement, and on November 2, 2007, the court issued a Rule 1925(a) Opinion (PCRA Court Opinion, 11/2/07).

        28

        The standard of review applicable to appeals from the denial of PCRA relief requires this Court to ascertain whether the PCRA court's rulings are supported by the record and free of legal error. Commonwealth v. Fahy, 598 Pa. 584, 959 A.2d 312, 316 (2008); Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d 306, 309 (2008). "In order to be eligible for PCRA relief, [a petitioner] must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008).

        29

        Appellant raises thirteen issues on appeal including claims that prior counsel failed to provide effective assistance of counsel. In order to be eligible for relief on a claim alleging ineffective assistance of counsel, a defendant must establish that counsels representation fell below accepted standards of advocacy and that as a result thereof, prejudice resulted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice results when "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987), this Court interpreted the Strickland standard as requiring proof that: (1) the underlying claim is of arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008). A chosen strategy will not be found to have been unreasonable unless it is proven that the path not chosen "`offered a potential for success substantially [649] greater than the course actually pursued.'" Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (1998)). Finally, to prove prejudice, a defendant must show that but for counsel's error, there is a reasonable probability, i.e., a probability that undermines confidence in the result, that the outcome of the proceeding would have been different. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1084 (2006) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A defendant's failure to satisfy even one of the three requirements results in the denial of relief. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 614 (2008).

        30

        Having articulated the standards applicable to appeals from the denial of PCRA relief and claims alleging ineffective assistance of counsel, we turn to a review of the issues raised by Appellant. We have re-ordered Appellant's issues for ease of review in accordance with their relation to the guilt, penalty, or PCRA phases of the proceeding.

        31
         
        32
        GUILT PHASE ISSUES
        33
         
        34
        1. A New Trial Is Warranted Because Trial Counsel Failed to Investigate and Present Evidence Showing that the Victim Was Killed in the Heat of Passion.
        35

         

        36

        Appellant asserts that he should have been granted a new trial because trial counsel failed to investigate and present evidence demonstrating that Appellant killed his wife in the heat of passion. In support of this claim, Appellant faults trial counsel for not calling during trial Dr. Gerald Cooke, a psychologist who had been retained by the defense for the penalty phase. Appellant claims Dr. Cooke would have opined that the killing was consistent with an explosive rage premised on Appellant's "personality makeup, his drug use and everything he told [Dr. Cooke] about the incident". Appellant's Brief, 18 (citing N.T. 10/29/03, 440). Appellant also contends that trial counsel's representation was deficient because he did not interview or call as witnesses several of Appellant's family members. According to Appellant, these witnesses would have testified that Appellant and the victim had a tumultuous relationship that was fueled by drug and alcohol abuse, that the victim saw other men, that she was impregnated by another man and had an abortion, that knives were kept in the bedroom where the murder occurred, and that the bed was broken prior to the day of the murder. Finally, Appellant states that trial counsel should have presented expert testimony demonstrating that the manner in which the victim was killed (multiple stab wounds) was typical of a "very angry assailant, an emotionally charged assailant," as well as testimony opining that the killing was committed in the heat of passion and that Appellant suffered from brain damage that affected his ability to appreciate the consequences of his actions.[6] Appellant's Brief, 21-22.

        37

        Appellant is entitled to no relief on this claim. A person is guilty of "heat of passion" voluntary manslaughter "if at the time of the killing [he or she] reacted under a sudden and intense passion resulting from serious provocation by the victim." Commonwealth v. Ragan, 560 Pa. [650] 106, 743 A.2d 390, 396 (1999). "`Heat of passion' includes emotions such as anger, rage, sudden resentment or terror which renders the mind incapable of reason." Commonwealth v. Mason, 559 Pa. 500, 741 A.2d 708, 713 (1999). An objective standard is applied to determine whether the provocation was sufficient to support the defense of "heat of passion" voluntary manslaughter. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1066 (2001). "The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was incapable of cool reflection." Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248, 252 (1981).

        38

        The PCRA court's opinion indicates that trial counsel not only did an "exceptional" job in attempting to establish that the killing was committed in the "heat of passion," but also that the refusal of Appellant to testify handicapped trial counsel because he was unable, without Appellant's testimony, to establish Appellant's state of mind at the time of the killing. The PCRA court wrote:

        39
        Based on the totality of the circumstances, the court finds that trial counsel was not ineffective for failing to establish a heat of passion defense. To the contrary, counsel did an exceptional job of getting evidence and argument regarding heat of passion into the record despite the defendant's refusal to take the stand. Further the testimony of the other alleged witnesses would either have been not admissible or irrelevant and/or not helpful. Thus, trial counsel was not ineffective for failing to call said witnesses during the trial.
        40

         

        41

        PCRA Court Opinion, 6/30/07, 25. The PCRA Court's reasons for rejecting this claim were correct as they indicate that the court had considered and rejected the evidence submitted at trial by Appellant regarding his claim that the killing was committed in the heat of passion and that the additional evidence would have resulted in a different outcome. The reason for this is clear, namely, the additional evidence fails to establish that the killing resulted from a sudden and intense passion resulting from serious provocation caused by the victim contemporaneously with the killing. Once Appellant refused to testify about the events surrounding the killing, he made it virtually impossible for counsel to convince the trial court that the killing was committed in the "heat of passion" insofar as the record lacked any evidence that the killing was the result of some provocative act committed by the victim or that Appellant killed the victim in the "heat of passion" as a consequence of the victim's provocation of him. Under the circumstances, the PCRA did not err in denying relief on this claim.

        42

        Even were we to consider the additional evidence and testimony Appellant claims trial counsel was ineffective for not presenting at trial, which concerns his wife's alleged infidelity and their stormy relationship, it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim. While Appellant claims that the victim's apparent infidelity and flirtatiousness, when coupled with his own mental state, were sufficient to cause him to act with sudden and intense passion, we note Appellant was well aware of his wife's proclivities prior to the day of the killing and trial counsel introduced evidence establishing this. Thus, the evidence Appellant claims should have been introduced on this issue was merely cumulative of evidence already presented at trial. Moreover, the evidence shows [651] that although Appellant and his wife argued while together at the bar, he calmed down and appeared to be in control of his faculties following the argument. N.T. 9/30/97, 213, 220. Also the note Appellant left at the scene evinces that he had not acted in the "heat of passion" but rather in a calculating manner.

        43

        In numerous cases, evidence showing a history of minor disputes and allegations of past infidelity has been held not to be sufficiently provocative to reduce murder to manslaughter. See Commonwealth v. Frederick, 508 Pa. 527, 498 A.2d 1322 (1985) (holding that evidence of a stormy relationship and of an argument between the defendant and his victim earlier on the day of the killing was not sufficient evidence of provocation to require a heat of passion jury instruction); Commonwealth v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986) (holding that defendant, who killed a man defendant believed killed his brother twenty-four hours prior thereto, was not acting under sudden passion); Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977) (holding argument between defendant and her mother's husband over black-eyed peas and leaving door open, which occurred approximately one half-hour to an hour before fatal stabbing of husband, was not adequate legal provocation to reduce murder to voluntary manslaughter); Commonwealth v. Walter Brown, 436 Pa. 423, 260 A.2d 742 (1970) (holding refusal of wife to return home, which caused husband to lose control and stab her, was not sufficient provocation to justify finding of voluntary manslaughter). In Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970), the defendant, who claimed that he was provoked to kill his wife because his wife may have seen another man while he himself was incarcerated, argued that it was error to refuse a request that the jury be instructed on heat of passion voluntary manslaughter. This Court found no merit to the claim, stating:

        44
        Unfortunately, this evidence, even if true, does not come close to establishing the prerequisites of voluntary manslaughter as set forth in Commonwealth v. Barnosky, 436 Pa. 59, 64, 258 A.2d 512, 515:
        45
        "To reduce an intentional blow, stroke, or wounding resulting in death to voluntary manslaughter, there must be sufficient cause of provocation and a state or rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting-if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. Commonwealth v. Drum, 58 Pa. 9(17)'[sic]; Commonwealth v. Paese, 220 Pa. 371, 373, 69 A. 891, 892 (1908), cited in Commonwealth v. Drum, 58 Pa. 9(17).'[sic] Com-2d 757, 762 (1968).[sic] See Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951); Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373 (1947)."
        46

         

        47

        Collins, 269 A.2d at 885-86.

        48

        The foregoing cases make clear that the acts of provocation relied upon by Appellant were simply not acts which society is prepared to recognize as providing sufficient provocation to reduce the crime of murder to manslaughter. Thus, trial counsel was correctly deemed not to have been ineffective for failing to present such evidence.

        49

        Appellant further argues, however, that when this evidence is coupled with the proposed testimony of the expert witnesses identified above, it establishes that the killing was committed in the "heat of [652] passion." In the absence of evidence about what precipitated the killing, one simply cannot draw the conclusion that Appellant killed his wife in a fit of rage after she provoked him. While Appellant's psychological makeup may have rendered him unable to handle his wife's infidelity and the couple's marital difficulties, absent some evidence that his wife committed an act sufficiently provocative at the time of or very shortly before the killing, the testimony of the expert witnesses was irrelevant. See Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (indicating that before a defendant's state of mind becomes relevant as to whether there was sufficient provocation, a defendant must first present evidence of provocation). Thus, trial counsel cannot be faulted for failing to introduce the identified expert testimony at trial. In view of the foregoing, we affirm the PCRA court's ruling that trial counsel was not ineffective for failing to investigate and introduce at trial the suggested additional evidence pertaining to whether the killing was committed in the heat of passion.

        50
         
        51
        2. Trial Counsel Was Ineffective for Failing to Investigate and Present Expert Testimony to Rebut the Commonwealth's Assertion that the Victim Was Raped.
        52

         

        53

        Appellant accuses trial counsel of providing him with ineffective assistance of counsel for not investigating and presenting evidence to rebut the Commonwealth's claim that Appellant raped the victim. Appellant submits that had such evidence been presented, the trial court would have ruled that the evidence was insufficient to support the rape charge.

        54

        During the PCRA evidentiary hearing, Appellant presented the testimony of two expert witnesses, Dr. Peter R. DeForest, a professor of criminalistics at John Jay College of Criminal Justice, and Dr. Charles Wetli, Chief Medical Examiner for Suffolk County. Dr. DeForest testified that his examination of the physical evidence in the case led him to the conclusion that the victim had not been raped. In reaching this conclusion, Dr. DeForest opined that the grounds relied upon by Dr. Callery in finding that a rape occurred, namely, the lack of blood below her stomach, the volume of fluid in her vagina, and the position in which her body was found, were insufficient to prove that a rape occurred, due either to more plausible explanations or the lack of adequate testing. N.T. 10/28/03, 285-91. Dr. DeForest further testified that trial counsel's cross-examination of Dr. Callery was grossly inadequate. N.T. 10/28/03, 292-96. Dr. DeForest indicated that his examination of the evidence and the opinions he rendered were based on scientific principles that were available in 1997 prior to the commencement of trial in this case. N.T. 10/28/03, 300.

        55

        Dr. Wetli also testified that there was no evidence of forcible rape. He based his conclusion on the lack of trauma to the victim's genital region and the fact that there was no evidence of strangulation or asphyxiation, which he opined almost always occurs during a forcible sexual assault. N.T. 10/28/03, 330-31. According to Dr. Wetli, the victim's defensive injuries were more consistent with her assailant straddling her chest than with his having intercourse with her at the time. N.T. 10/28/03, 333.

        56

        Both Dr. DeForest and Dr. Wetli conceded that they could not rule out that the victim had been forcibly raped. N.T. 10/28/03, 320, 352. During cross-examination, Dr. DeForest qualified his opinion that the position of the victim's body made it unlikely that a rape occurred by admitting that intercourse could have occurred in the position in which the victim was [653] found. N.T. 10/28/03, 307. He also conceded that the defensive wounds found on the victim's body demonstrated that she was resisting the attack. N.T. 10/28/03, 315-16.

        57

        Trial counsel testified that based on his experience, he believed that it was not necessary to consult an expert to rebut the evidence that a rape occurred because he did not think that Dr. Callery would be found credible. N.T. 10/27/03, 85-87. Although counsel could not recall what he did in preparing to cross-examine Dr. Callery, he recalled he did take steps to discredit his testimony.

        58

        The PCRA court found this claim lacked merit for several reasons, the most salient one being that Appellant failed to prove that trial counsel's actions lacked a reasonable basis. PCRA Court Opinion, 6/30/07, 9.[7] Trial counsel testified that he did not seek out and retain an expert because his review of the evidence made it pellucidly clear to him that no rape occurred and that it was his belief that anyone who reviewed the evidence would draw the same conclusion he did. N.T. 10/27/03, 85-86. Trial counsel also related that it was his belief that he could rebut and undermine the testimony of Dr. Callery, the Commonwealth's expert witness, with respect to whether a rape occurred without the assistance of an expert witness through skillful cross-examination of Dr. Callery. N.T. 10/27/03, 87. Counsel drew this conclusion from his cross-examination of Dr. Callery at a pre-trial hearing during which he extensively cross-examined the doctor and elicited from him several inconsistencies with respect to whether the doctor was of the opinion, to a reasonable degree of medical certainty, that the murder and the sexual intercourse occurred simultaneously. Thus, the PCRA court concluded that "counsel reasonably thought that he did not need to retain additional experts in this case." PCRA Court Opinion, 6/30/07, 9.

        59

        On the basis of trial counsel's testimony, we cannot say that the PCRA court erred in concluding that trial counsel had a reasonable basis for not seeking out an expert witness to rebut Dr. Callery's testimony. This Court's review of matters involving trial strategy is deferential. Trial counsel will be deemed to have acted reasonably if the course chosen by trial counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008). Moreover, a claim of ineffectiveness will not succeed by comparing, in hindsight, the trial strategy trial counsel actually employed with the alternatives foregone. Id. Finally, "[a]lthough we do not disregard completely the reasonableness of other alternatives available to counsel, `the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.'" Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655 (2007) (quoting Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)).

        60

        Since the record supports the PCRA court's finding that trial counsel had a reasonable basis for not consulting with an expert witness, Appellant is denied relief with respect to this claim.

        61

        [654] 

        62
        Brady v. Maryland
        63

         

        64

        In this claim, Appellant complains that trial counsel was ineffective because he did not conduct any investigation with respect to Commonwealth witness Michael Torres, Appellant's former cellmate, who testified at trial that Appellant said he would be back in prison for killing the victim. N.T. 9/30/97, 180-81. According to Appellant, at the time he allegedly heard Appellant utter the threat, Torres was manic-depressive and bi-polar, was suffering from auditory hallucinations, and was being treated with psychotropic medication. Such information, Appellant maintains, was contained in various prison records and reports and in a pre-sentence report prepared by Northampton County officials after Torres had been convicted on drug and robbery charges. Appellant submits that trial counsel had an obligation to obtain these documents and could have obtained them had he simply conducted an investigation of Torres. Appellant argues that trial counsel's failure to investigate Torres entitles him to a new trial because Torres provided the only direct testimony that Appellant acted with premeditation when he killed the victim.

        65

        In a related claim, Appellant accuses the Commonwealth of violating the holding of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it failed to provide the defense with a copy of Torres's pre-sentence report. According to Appellant, the Commonwealth had an obligation under Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001), to obtain the pre-sentence report from Northampton County authorities because it contained exculpatory information and was under the control of another governmental agency.

        66

        Neither claim entitles Appellant to relief. First, Appellant's attack on trial counsel's stewardship affords him no relief because trial counsel had no reason to believe that Torres was suffering from mental health problems. Although Torres was Appellant's cellmate for two months and spent significant time with Appellant in prison, Torres never told Appellant about his mental problems or acted in a manner suggesting that he had any. In fact, Torres never advised the prosecutor or the police involved in the instant matter about any mental problems. Torres admitted this at the evidentiary hearing held in this matter. N.T. 10/28/03, 224, 227, 235-36, 244.[8]

        67

        In addition, the claim does not entitle Appellant to relief because he has not met his burden of establishing that he suffered prejudice because of trial counsel's alleged nonfeasance. According to Appellant, he was prejudiced by trial counsel's failure to investigate Torres because Torres's testimony "was critical to establishing the specific intent element of first-degree murder as [t]here was little else in the case that pointed to any kind of deliberation or premeditation of any kind." Appellant's Brief, 38. Appellant is mistaken. In addition to the use of a deadly weapon on vital parts of the victim's body,[9] [655] Appellant left the incriminating note wherein he admitted that he killed the victim willfully. Thus, Torres's testimony was not as critical as Appellant claims it was with respect to proof that he acted with specific intent to kill.

        68

        Additionally, the PCRA court found Torres's recantation and Appellant's ignorance of Torres's mental health problems, including Torres's claim that he was hearing voices while incarcerated with Appellant, incredible because Appellant and Torres were cellmates and spent significant time together. PCRA Court Opinion, 6/30/07, 6-7. The PCRA court also noted that Torres had been threatened while in prison, which prompted prison authorities to move him on two occasions to other facilities after he testified against Appellant. The PCRA court attributed Torres's change of testimony to the threats and a desire to assist a friend and former co-prisoner. Finally, the PCRA court held that trial counsel effectively undermined Torres's testimony by presenting the testimony of a witness who stated that Torres admitted he was going to lie about what Appellant may have said to him in order to help himself. PCRA Court Opinion, 6/30/07, 7. We find that the reasons proffered by the PCRA court support its decision. Accordingly, Appellant has failed to establish that he was prejudiced by trial counsel's failure to conduct an investigation of Torres, and therefore, Appellant is not entitled to relief with respect to this claim of ineffectiveness. See Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 93 (1998) (holding that where there is support in the record for a PCRA court's credibility determinations, this Court is bound by those determinations).

        69

        Appellant's claim that the Commonwealth violated the holding of Brady v. Maryland, supra, by failing to provide a copy of Torres's pre-sentence report to the defense lacks merit as well. In order to succeed on a Brady claim, a defendant must establish that the evidence withheld was favorable to him, i.e., that it was exculpatory or had impeachment value; the evidence was suppressed by the prosecution; and prejudice resulted. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 658 n. 12 (2008). In order to establish prejudice, a defendant is obliged to show that "the evidence in question was material to guilt or punishment, and that there is a reasonable probability that the result of the proceeding would have been different but for the alleged suppression of the evidence." Commonwealth v. James Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). On this point, this Court has stated, "[i]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242, 1245 (1994) (quoting United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Further, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 887 (2002) (emphasis added). Finally, a Brady violation will not afford a defendant relief if the defendant either knew of the existence of the evidence in dispute or could have discovered it by exercising reasonable diligence. Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 696 (2003).

        70

        [656] Instantly, Appellant's claim fails for myriad reasons. First, Appellant has failed to establish that the result of the proceedings would have been different had the pre-sentence report been provided to the defense. As noted above, the record was replete with evidence establishing that Appellant was guilty of the crimes he was convicted of committing, including first-degree murder. Thus, Torres's testimony was not crucial to the verdict rendered by the trial court and the verdict would not have been different had the pre-sentence report been provided to the defense.

        71

        In addition, the Commonwealth was not required to obtain the pre-sentence report and provide it to the defense because the governmental agency that possessed it was not involved in the prosecution of Appellant. In Commonwealth v. Burke, supra, this Court first applied the rule laid down by the United States Supreme Court in Kyles v. Whitley, supra, wherein the Supreme Court held that the prosecution has a duty to provide the defense with exculpatory evidence contained in the files of police agencies of the same government bringing the prosecution, even though the prosecution was unaware of the existence of the evidence. The United States Supreme Court, however, limited its holding to those agencies that were involved in the prosecution of the accused. Whitley, 514 U.S. at 437, 115 S.Ct. 1555 ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."). Here, Appellant has failed to establish that the government agency or agencies having possession of the pre-sentence report were involved in the prosecution of Appellant. Consequently, the prosecution herein had no obligation to acquire or provide the report to the defense. Accordingly, we hold Appellant's claim of ineffectiveness and his allegation that the Brady rule was violated are meritless and entitle him to no relief.

        72
         
        73
        4. Trial Counsel Was Ineffective for Failing to Object to the Testimony of Dr. Richard Callery about the Occurrence of Rape Because Dr. Callery's Opinion Fell Below the Standard of Proof Required in the Commonwealth.
        74

         

        75

        Appellant contends that he is entitled to a new trial because of trial counsel's failure to object to the testimony of Dr. Richard Callery, the Commonwealth's medical expert, regarding whether the victim had been raped. Appellant asserts that trial counsel should have objected to Dr. Callery's testimony on the ground that Dr. Callery failed to state that a rape occurred to a reasonable degree of medical certainty.

        76

        A review of the applicable law indicates that "magic words" need not be uttered by an expert in order for his or her testimony to be admissible. Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711, 728 (1998); Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1160 (2000). Rather, the substance of the testimony presented by the expert must be reviewed to determine whether the opinion rendered was based on the requisite degree of certainty and not on mere speculation. Spotz, 756 A.2d at 1160.

        77

        Trial counsel testified that he did not proffer an objection to Dr. Callery's testimony because three weeks prior to Dr. Callery's taking of the witness stand, Dr. Callery testified during a pre-trial hearing that it was his opinion that a rape occurred and that if he proffered an objection, the Commonwealth would have been permitted to elicit the necessary testimony from the doctor. In addition, trial counsel testified that he did not object, and give the Commonwealth an opportunity to elicit from [657] Dr. Callery the "magic words" because he made the tactical decision to use that omission to argue to the trial court that no rape occurred.

        78

        The PCRA Court ruled that this ineffectiveness claim lacked merit because trial counsel had a reasonable basis for failing to object. PCRA Court's Opinion, 11/2/07, 30-31. We agree. Counsel was correct in surmising that an objection likely would have resulted in the Commonwealth seeking and being granted permission to elicit from Dr. Callery his opinion that a rape had occurred herein given that the doctor had offered that opinion prior to trial. Thus, had trial counsel proffered an objection, his strategy to use the omission to argue that there had been no rape would have been negated by the anticipated opinion testimony of Dr. Callery that the victim had been raped. Trial counsel's strategy was reasonable given that had the trial court determined that Dr. Callery's opinion testimony was insufficient to establish a rape because the doctor did not utter the "magic words," as trial counsel argued, the Commonwealth would have been without a viable aggravating circumstance. Accordingly, because trial counsel had a reasonable basis for not objecting here, Appellant's claim with respect to this issue was properly denied by the PCRA court.

        79
         
        80
        5. The PCRA Court Committed an Abuse of Discretion in Refusing to Permit the Defense to Amend Appellant's PCRA Petition Two Years after the Evidentiary Hearing Was Conducted.
        81

         

        82

        Almost two years after the evidentiary hearing, Appellant filed a petition with the PCRA court requesting permission to supplement the record with an affidavit signed by Dr. Callery.[10] Appellant also requested that Dr. Callery be permitted to testify that he could not opine to a reasonable degree of medical certainty that the victim had been raped. In an order dated July 27, 2006, the PCRA court denied the petition. Appellant contends that the PCRA court committed an abuse of discretion in denying his petition because the contents of Dr. Callery's affidavit and his proposed testimony directly refute the finding that Appellant raped the victim. In addition, Appellant complains that the petition should have been granted in the interests of justice given that Appellant's rape conviction served as the only basis for finding the aggravating circumstance set forth at 42 Pa.C.S. § 9711(d)(6). Finally, Appellant asserts that he is entitled to relief because of the ineffectiveness of trial counsel who, Appellant claims, failed to conduct an investigation into whether the victim had been raped.

        83

        The PCRA court, in addressing this claim in its Rule 1925(a) opinion, declared that no relief was due because Appellant was seeking to introduce Dr. Callery's affidavit and testimony solely to re-litigate the issue of whether the evidence was sufficient to support the rape conviction, a claim this Court rejected on direct appeal. Miller, 724 A.2d at 901. Thus, the PCRA court ruled that the claim was not cognizable under the PCRA.[11] PCRA Court Opinion, 11/2/07, 9-10. The PCRA court further indicated that Dr. Callery's apparent retraction of his trial testimony does not [658] establish that trial counsel was ineffective and that the record, even without Dr. Callery's testimony, supported the finding that Appellant had raped the victim. PCRA Court Opinion, 11/2/07, 10-11.

        84

        Before we may review any of Appellant's arguments, we must determine whether the PCRA court was correct in holding that the claim was previously litigated. If we determine the PCRA court properly held the claim was previously litigated, we are precluded by the PCRA from reviewing it. See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 617 (2007) (holding that previously litigated claim is not cognizable under the PCRA); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 708 (1998) (same). The difficulty here is that Appellant has raised two claims that do not allege ineffective assistance of counsel: he alleges that the PCRA court committed an abuse of discretion in denying his petition and that the court should have granted his petition in the interests of justice. To further complicate matters, Appellant's claim of ineffective assistance of counsel contains no discussion of these issues and states that trial counsel was ineffective for failing to interview Dr. Callery and investigate whether a rape had occurred. Appellant's Brief, 48-49.

        85

        A review of the two claims not alleging ineffective assistance of counsel leads ineluctably to the conclusion that they comprise an issue that was previously litigated, namely, whether the evidence was sufficient to support Appellant's rape conviction. This becomes readily clear upon reviewing Appellant's brief and the material he sought to introduce. For example, Appellant argues that the PCRA court abused its discretion because it denied Appellant the opportunity "to demonstrate that the prosecution was without any competent evidence of the commission of rape." Appellant's Brief, 45. He also claims that the interests of justice demand that he be granted relief with respect to "this issue" so that he may be given an opportunity to rebut the testimony of the medical examiner. Appellant's Brief, 47.

        86

        In Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005), this Court defined the term "issue" for purposes of the PCRA as follows:

        87
        That term, as used in "pleading and practice," is understood to mean "a single, certain, and material point, deduced by the allegations and pleadings of the parties, which is affirmed on the one side and denied on the other." Black's Law Dictionary, 6th ed. 831. Thus, "issue" refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief. See, e.g., Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (defining "grounds" as "a sufficient legal basis for granting the relief sought by the applicant"). The theories or allegations in support of the ground are simply a subset of the issue presented. Stated another way, there can be many theories or allegations in support of a single issue, but ultimately, § 9544(a)(2) refers to the discrete legal ground raised and decided on direct review. Thus, at the most basic level, this section prevents the relitigation of the same legal ground under alternative theories or allegations. See, e.g., Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) (concluding that a new theory in support of the same claim of trial counsel ineffectiveness was unavailing since the claim was decided adversely [659] to petitioner in his previous direct appeal); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) ("A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced.").
        88

         

        89

        888 A.2d at 570. Here, insofar as Appellant sought to introduce the material in question to demonstrate that the evidence was insufficient to sustain Appellant's rape conviction, the PCRA court was correct in finding that it was precluded from addressing the issue because it had been previously litigated. See Miller, 724 A.2d at 901. Thus, no error was committed by the PCRA court in denying relief with respect to Appellant's first two claims.[12]

        90

        Although Appellant's first two claims are not cognizable because they concern issues previously litigated, the same is not true with respect to Appellant's ineffectiveness claim. In Collins, supra, we ruled that claims of ineffective assistance of counsel constitute separate and distinct issues that may be raised in a collateral proceeding attacking the verdict. Collins, 888 A.2d at 570. Such claims are to be analyzed pursuant to the three-prong ineffectiveness test generally applicable to such claims. Id. at 573.

        91

        An application of that test to the instant claim indicates that Appellant is not entitled to any relief. Appellant argues that the claim has arguable merit based on an assertion that had trial counsel sought out experts or "interviewed Dr. Callery, there is a reasonable probability that Dr. Callery would have given him the same information he provided to undersigned counsel, and counsel could have moved to exclude his testimony on rape as not competent, due to an insufficient level of certainty." Appellant's Brief, 48. However, Appellant's argument amounts to nothing more than mere speculation. There is no indication in the record that Dr. Callery would have advised trial counsel before the trial commenced that it was his belief that no rape occurred if only trial counsel had interviewed him. In fact, according to the PCRA court, Dr. Callery twice affirmed at two previous hearings that it was his opinion that a rape occurred despite vigorous cross-examination by trial counsel. PCRA Court Opinion, 10. Thus, Appellant is not entitled to relief as he has failed to establish that trial counsel was ineffective for the reasons stated.

        92
         
        93
        6. A New Trial Should Be Granted Because Appellant's Waiver of His Right to a Jury Trial and His Right To Testify Were Inadequate.
        94

         

        95

        It is Appellant's position that a new trial should be awarded because the ineffectiveness of trial counsel rendered his waiver of his right to a jury trial and his waiver of his right to testify unknowing and unintelligent and thus invalid. According to Appellant, he "could not knowingly and intelligently waive a jury trial [or his right to testify] given [trial] counsel's dearth of investigation and the wealth of information that was available to counsel but of which counsel was unaware."[13] Appellant's [660] Brief, 50. In addition, Appellant submits that because trial counsel's pre-trial investigation was inadequate, counsel "could not have properly advised Appellant to waive his right to a jury trial." Appellant's Brief, 50.

        96

        Appellant is entitled to no relief with respect to this issue because we have held that trial counsel was not ineffective for the reasons stated by Appellant. Moreover, Appellant has failed to meet the prejudice prong of the ineffectiveness test here since he never alleged or proved that but for counsel's alleged ineffectiveness he would not have waived a jury trial. See Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 697 (2008) (holding that in order to meet the prejudice prong of the ineffectiveness test, a defendant alleging that a jury waiver colloquy was deficient must establish that the outcome would have been different, i.e., that but for counsel's ineffectiveness he would not have waived a jury trial); Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 663 (1998) (Opinion Announcing the Judgment of the Court) (stating that this Court cannot presume that a defendant would have chosen a jury trial; burden is on defendant to set forth a factual predicate establishing same before relief may be granted).

        97

        Notably, a review of the record of the jury waiver hearing demonstrates that Appellant's waiver comported with the law. A valid waiver of the right to a jury trial must contain evidence that the accused understood the fundamental essentials of a jury trial which are: "1) that the jury be chosen from members of the community (i.e., a jury of one's peers), 2) that the accused be allowed to participate in the selection of the jury panel, and 3) that the verdict be unanimous." Commonwealth v. Houck, 596 Pa. 683, 948 A.2d 780, 787 (2008); see also Mallory, supra. Instantly, the record demonstrates that Appellant signed a written jury waiver colloquy form that set forth the essential elements of a jury trial and explained all of the rights Appellant was waiving by deciding to be tried by a judge and not a jury. In addition, the trial court questioned Appellant twice on the record regarding his decision to waive his right to a jury trial. N.T. 9/24/97, 2-20; N.T. 9/29/97, 9-12. On both occasions, Appellant averred that he understood the rights associated with the right to a jury and that he was waiving them knowingly, intelligently, and voluntarily. In this regard, Appellant's waiver of his right to a jury trial appears to be unassailable.

        98

        Appellant's contention that his waiver of his right to testify was invalid lacks merit for the same reason that the foregoing claim did, namely, Appellant has failed to prove that but for trial counsel's ineffectiveness, he would have testified. Claims alleging ineffectiveness of counsel premised on allegations that trial counsel's actions interfered with an accused's right to testify require a defendant to prove either that "counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf." Commonwealth v. Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000). See also Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 (1998).

        99

        By not testifying at the evidentiary hearing, Appellant has placed this Court in the position of having to guess whether counsel's ineffectiveness interfered with his right to testify. Furthermore, trial counsel testified at the evidentiary hearing that he asked Appellant to testify both at trial and during the penalty hearing and [661] Appellant refused. N.T. 10/27/03, 77-78, 80. We may not engage in speculation on this issue and thus Appellant's claim is meritless.

        100
         
        101
        PENALTY PHASE ISSUES
        102
         
        103
        7. Appellant's Waiver of a Jury for the Penalty Phase Was Invalid; Trial Counsel Was Ineffective for Not Objecting to the Waiver Colloquy and for Not Raising the Issue on Appeal.
        104

         

        105

        Appellant argues that he is entitled to the reversal of his death sentence and a remand for a new penalty hearing because the jury waiver colloquy was insufficient and did not adequately and comprehensively advise him of the rights he was waiving and the salient differences between the guilt and penalty phases of a capital case. Appellant complains that in questioning him, the trial court did not advise him that if the jury could not agree upon a penalty verdict, a sentence of life imprisonment would be recorded and also that mitigating circumstances could be found individually by each of the jurors. Appellant's Brief, 59-60. Thus, he claims that his waiver was unknowing and unintelligent. In addition, Appellant accuses trial counsel of providing ineffective assistance of counsel for not objecting to the allegedly defective colloquy and for not arguing on appeal that that a new penalty was warranted because the waiver colloquy was incomplete.

        106

        The record of Appellant's trial indicates that the trial court conducted three separate colloquies of Appellant, one on September 24, 1997, one on September 29, 1997, and one on October 2, 1997. The final colloquy occurred immediately prior to the commencement of the penalty hearing. N.T. 10/2/97, 284-86. No objection was made as to the inadequacy of the colloquies at any time nor was the issue raised on appeal. Thus, for purposes of the PCRA, the claim was waived because it could have been raised previously. See 42 Pa.C.S. § 9544(b). Consequently, in order to obtain relief on this claim Appellant was obliged to establish that trial counsel was ineffective for not proffering an objection asserting that the colloquies were legally insufficient for the reasons stated by Appellant.[14] Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455 (2004). See also Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 228 (2007). A review of the record indicates that Appellant has failed to meet his burden of proving that trial counsel was ineffective because he has failed to establish that he was prejudiced by counsel's alleged ineffectiveness.

        107

        In the discussion of the previous issue, we referred to Mallory, supra. In Mallory, this Court held that in order to establish prejudice in a matter alleging that a jury waiver colloquy was deficient, a defendant must establish that, but for counsel's ineffectiveness, he or she would not have waived the right to a jury trial. As we have already stated, the record is devoid of evidence demonstrating that Appellant would have elected to have a jury decide his sentence had trial counsel not been ineffective. Since the failure to establish even one of the three requirements of the ineffectiveness standard undermines an ineffective assistance of counsel claim, it is clear that Appellant is entitled to no relief on this issue. Cook, supra.[15]

        108

        [662] 

        109
        8. Trial Counsel Was Ineffective for Failing to Investigate and Present All Available Mitigating Evidence During the Penalty Hearing
        110

         

        111

        Appellant contends that trial counsel was ineffective because he failed to investigate and present readily available evidence of Appellant's child abuse, family dysfunction, mental health deficits, brain impairment, problems while in school, and "complex and tragic" relationship with the victim.[16] Appellant's Brief, 65, 77. Appellant also asserts that trial counsel should have introduced evidence showing that Appellant had a brain lesion removed in 1984, attended drug treatment programs, had a history of drug abuse, and the victim obtained an "order of Attachment of Income" against Appellant just prior to the slaying. Appellant's Brief, 77. Appellant also faults trial counsel for not interviewing and/or calling as witnesses during the penalty hearing his mother Agnes Miller, his sisters, Glenna Saganich, Linda Drew, and Brenda Sue Pennington, his brother Kenneth Miller, his daughter Barbara Miller, and the victim's sister Helen Pennington. Through these witnesses, Appellant claims, trial counsel could have convinced the trial court, sitting as factfinder, to enter a sentence of life imprisonment.

        112

        During the penalty hearing, after the Commonwealth presented evidence that Appellant had been convicted of rape and victim-impact testimony from Appellant's daughter, Barbara Miller, Appellant presented the testimony of four witnesses, Dr. Gerald Cooke, Kenneth Miller, Deborah Miller, and Agnes Miller. Dr. Cooke, a clinical and forensic psychologist, testified that he examined and interviewed Appellant on August 14, 1997, taking from him a personal history and administering a battery of tests. During the interview, Appellant related that he was the youngest of eight children and that his father was an alcoholic who was abusive to his mother. Appellant often attempted to protect his mother from his father, which, according to the doctor, caused Appellant to have problems in school and with anger management. N.T. 10/2/97, 297. Regarding school, Appellant told the doctor that he dropped out in eighth grade because of trouble with his behavior. Appellant also indicated that he had a good work history having worked mainly as a heavy machine operator and a truck driver. Appellant admitted that he had a substance abuse problem that involved both drugs and alcohol that began in his teens. Id. at 298-99. Although Appellant stated that he underwent both drug and alcohol rehabilitation, Appellant told the doctor that he again took up both habits some months after undergoing treatment. Appellant admitted to Dr. Cooke that at the time of the incident he was injecting heroin daily and using methamphetamine occasionally. Id. at 299. Appellant denied having any significant medical history. Id. at 300.

        113

        Appellant also related to the doctor that he had been arrested for assault on two occasions because of incidents involving his wife. One of the incidents, which resulted in Appellant's incarceration, arose when Appellant became angry because the victim reneged on a promise to seek help for her own drug and emotional problems. Id.

        114

        [663] Based on the testing he performed, Dr. Cooke estimated that Appellant's intelligence quotient ranged between 81 and 89. Id. at 303. Testing also revealed that Appellant had low self-esteem and a need to be accepted which led him to seek constant attention. Id. at 304. Dr. Cooke diagnosed Appellant as having a paranoid personality disorder with antisocial and explosive features. Id. at 305. He also added second and third diagnoses of drug dependence and alcohol abuse. Id. With regard to mitigating circumstances, Dr. Cooke opined that Appellant was incapable of conforming his behavior to the requirements of the law and that his use of drugs and alcohol[17] on the day of the incident played a role in the murder. Id. at 306-07. He also stated that Appellant could make an adequate adjustment in prison. Id. at 303. Finally, Dr. Cooke testified that he found no evidence that Appellant "suffered from a thinking disorder or psychosis or any kind of major affective disorders such as major depression or manic disorder." Id. at 296.

        115

        Kenneth Miller, Appellant's brother, testified that he often observed Appellant and the victim together and they seemed to be happy. Appellant also appeared to have a good relationship with his children. Id. at 319-20. Kenneth Miller stated that if Appellant were sentenced to death, it would greatly affect him and his family.

        116

        Deborah Miller, Appellant's sister, testified that it appeared to her that Appellant and the victim appeared to be happy and that their relationship was good. Id. at 321. She also stated that when Appellant was released from prison, he appeared to be happy and relieved that he could reunite with his family. Id. at 322.

        117

        Agnes Miller, Appellant's mother, told the trial court that Appellant was hard working and a loving father. Id. at 323. She stated that Appellant's children were having problems because of the incident and that if Appellant were sentenced to death, it would exacerbate those problems. Id. at 324. In addition, Agnes Miller's trial testimony was incorporated into the record for purposes of the penalty hearing. Id. at 286-87. At trial, she testified that Appellant's marriage to the victim was good at its inception but that it deteriorated because of drug and alcohol use. N.T. 9/29/97, 30. Agnes Miller denied having any knowledge that Appellant and the victim were violent toward one another. Id. at 33.

        118

        At the evidentiary hearing, Appellant presented the testimony of several family members as well as that of various experts. Agnes Miller testified about the violence inflicted on her by her husband and Appellant's attempts to intervene. She also testified that there were problems in Appellant's marriage to the victim. She stated that Appellant's trial attorney did not ask her about her relationship with her husband or about the state of Appellant's marriage and that if counsel had done so, she would have agreed to speak to him. N.T. 10/28/03, 355-69. Agnes Miller conceded that the only time she saw Appellant act abnormally was usually when he was using drugs. Id. at 373.

        119

        Barbara Miller, Appellant's daughter, testified about her parents and their relationship. She stated that they often fought because her mother complained about not having enough money to support the family because Appellant spent it on drugs. Although she was angry with her father, Barbara indicated that she would have testified for him at the penalty hearing had she been asked to do so. Id. at 376-93; N.T. 10/29/03, 397-414.

        120

        [664] Kenneth Miller testified that Appellant grew up in a household headed by a violent alcoholic father who took little interest in Appellant. The family was poor which further stigmatized them in the eyes of their schoolmates. According to Kenneth, Appellant began drinking at age nine and quickly graduated to using drugs. Kenneth also testified about Appellant's marriage. He stated that Appellant and the victim had a history of breaking up and reconciling, that they both used drugs, and that they grew apart from the Miller family as their marriage progressed. N.T. 10/29/03, 482-501. Kenneth stated that Appellant was able to hold a job and never exhibited any behavior indicating that he had mental limitations. Id. at 503-05.

        121

        Appellant's sisters, Glenna Saganich, Brenda Sue Pennington, and Linda Drew each reiterated much of what Kenneth testified to concerning Appellant's home life. They all testified that they were never interviewed about Appellant's background and that had they been asked to testify about it, they would have been available to do so. Helen Pennington, the victim's sister, testified about the state of Appellant's marriage and stated that Appellant worked double shifts so that the victim could stay home, that Appellant and the victim sold drugs, that the victim had relationships with other men, and had an abortion after she was impregnated by another man. All of these witnesses testified that they were not interviewed and that they would have testified for Appellant if asked to do so.

        122

        Appellant called two experts to the stand during the evidentiary hearing for purposes of establishing that trial counsel was ineffective in preparing for the penalty hearing. Dr. Carol Armstrong, a neuropsychologist, testified that she conducted neuropsychological testing of Appellant and found evidence that he suffered from brain impairment in the areas of motor control, verbal ability, and reasoning skills, among others. N.T. 10/27/03, 121-22. These deficits, according to the doctor, had an impact on his reasoning and judgment skills and affected cognition and behavior. Id. at 124. The doctor opined, to a reasonable degree of psychological certainty, that Appellant's brain deficits constituted an extreme mental or emotional disturbance and substantially impaired his ability to conform his conduct to the law. Id. at 129. Dr. Armstrong further testified that because Appellant was the product of a violent home, an abuser of drugs and alcohol, had a low I.Q. score, had trouble in school, had a motorcycle accident in his teens, and had a scalp lesion removed in 1984, trial counsel should have had Appellant undergo neuropsychological testing. Id. at 115-17.

        123

        Dr. Julie Kessel, a board certified psychiatrist, substantiated what Dr. Armstrong stated, namely that Appellant suffered from a substantially impaired capacity to conform his conduct to the requirements of the law and that he was under the influence of extreme mental or emotional distress. N.T. 10/29/03, 548. She based her finding on Appellant's upbringing, substance abuse problem, brain impairment, and relationship with the victim, which according to the doctor, affected his impulse control on the night of the slaying. Id. at 535-37, 548.

        124

        Trial counsel also testified at the evidentiary hearing. He indicated that he had no strategic reason for not seeking Appellant's school or drug treatment records. N.T. 10/27/03, 23, 25. He stated that he did not speak to Barbara Miller (Appellant's daughter) prior to trial because she was a young child and because he ascertained from other family members that she did not possess any useful information. Id. at [665] 25. Regarding Appellant's medical records, trial counsel testified that after speaking to Appellant and other members of his family, he believed that he had been fully apprised of Appellant's history and thus had all of the information he needed. Id. at 30.

        125

        When asked why he did not have Appellant tested by a neuropsychologist for brain damage when he was aware that Appellant was a drug user, trial counsel replied that he saw no evidence that would cause him to suspect that Appellant suffered from brain damage or mental infirmity. Id. at 40, 61. He based his decision on his interaction with Appellant, who was able to converse intelligently with him, on speaking with members of Appellant's family, and the contents of the report prepared by Dr. Cooke, who found Appellant did not suffer from any thinking disorder, psychosis, or any major affective disorders. Id. at 43, 56, 62-63. He also stated that he decided not to present a diminished capacity or intoxication defense based on his conversations with Appellant who provided details of the crime and his reasons for committing it. Id. at 45-47. Trial counsel stated that he had no reason for not seeking out and interviewing other members of Appellant's and the victim's family other than that he believed he had received sufficient information from Appellant and the family members to whom he spoke. Id. at 30. Finally, he testified that he decided that it would not be in Appellant's best interests to argue that Appellant killed his wife because Appellant grew up in a dysfunctional home and his father had abused his mother. Id. at 67-69.

        126

        After considering the testimony presented by Appellant and his arguments in favor of the grant of a new penalty hearing, the PCRA court denied Appellant relief on his claim that trial counsel had been ineffective with respect to the penalty phase of the proceedings. The PCRA court determined that there was nothing of record, either from Appellant or from his family, that established that "trial counsel knew or should have known about the [Appellant's] possible brain damage." PCRA Court Opinion, 6/30/07, 13. The PCRA court also concluded that Appellant had not been prejudiced by trial counsel's failure to investigate and present evidence that Appellant suffered from brain damage because the record is devoid of any evidence demonstrating that a mental impairment affected his judgment at the time of the incident. Id. at 13-14.

        127

        Regarding the allegation that trial counsel had been ineffective for not interviewing members of Appellant's family and the victim's sister, the PCRA court declared that trial counsel had not been ineffective because the anticipated testimony of these witnesses would have been cumulative of testimony presented by Dr. Cooke. Id. at 30. The PCRA court further stated that trial counsel had acted reasonably in not premising Appellant's defense on the evidence relating to Appellant's abusive childhood and family history. The PCRA court noted that trial counsel did present such evidence and that counsel correctly surmised that such evidence would not have swayed the court to find that Appellant killed his wife because he grew up in a dysfunctional household and had been abused as a child. Id. at 30-31.

        128

        With respect to the allegation that trial counsel should have interviewed Appellant's daughter and called her as a witness, the PCRA court ruled that trial counsel had not been ineffective for not interviewing and calling her to testify. The court held that she would not have been a helpful witness for the defense because she was very angry about her mother's death, appeared during the penalty hearing to disagree with trial counsel's argument that [666] Appellant should not receive the death penalty, and testified for the Commonwealth during the penalty hearing. Id. at 32-33.

        129

        The PCRA court further stated that trial counsel was not ineffective for failing to obtain and introduce Appellant's school, medical, and drug treatment records or the record of the support order. Counsel was not ineffective, according to the court, because Dr. Cooke testified to Appellant's low I.Q. and trial counsel knew about and introduced evidence of Appellant's drug problems. Id. at 31. It was not derelict of trial counsel not to obtain Appellant's medical records, according to the PCRA court, because there was no indication that Appellant suffered from a mental illness. Id. Finally, the PCRA court proclaimed that the failure to introduce evidence pertaining to the support order did not constitute ineffectiveness because there was no evidence of record establishing that Appellant knew of the issuance of the order. Id.

        130

        The standards applicable to claims alleging that counsel was ineffective for failing to investigate and present mitigating evidence was recently set forth in Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310, 331 (2007), as follows:

        131
        As this Court has observed, the United States Supreme Court has held that the Sixth Amendment requires capital counsel "to pursue all reasonably available avenues of developing mitigation evidence." Commonwealth v. Gorby, 589 Pa. 364, 909 A.2d 775, 790 (2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). Counsel must exercise reasonable professional judgment, and in examining counsel's conduct, "we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence... was itself reasonable." Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 784 (2004) (quoting Wiggins, 539 U.S. at 523, 123 S.Ct. 2527, 156 L.Ed.2d 471).
        132

         

        133

        938 A.2d at 331. In addition, this Court has stated:

        134
        Strategic choices made following less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. In undertaking the necessary assessment, reviewing courts are to take all reasonable efforts to avoid the distorting effects of hindsight. See Commonwealth v. Basemore, 560 Pa. 258, 289, 744 A.2d 717, 735 (2000). Nevertheless, courts must also avoid "post hoc rationalization of counsel's conduct." Wiggins, 539 U.S. at 526-27, 123 S.Ct. at 2538.
        135

         

        136

        Sattazahn, 952 A.2d at 655-56 (citation omitted).

        137

        Finally, the "reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation." Steele, supra; see also Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (2004) (holding that while counsel has a duty to conduct a reasonable investigation, reasonableness of investigation may be dependent on information supplied by the defendant).

        138

        Appellant has not shown that trial counsel acted unreasonably by not interviewing and presenting the testimony of the witnesses identified above. Trial counsel did investigate evidence of Appellants childhood circumstances, marital relationship, and drug abuse, and introduced evidence pertaining thereto during the penalty hearing. In addition, trial counsel introduced through Dr. Cooke the witnesses who testified during the penalty hearing, and Appellants written background [667] history and statement concerning Appellants life history, the abuse Appellant observed and was subject to while growing up, as well as evidence of his drug use. This Court has consistently held that trial counsel cannot be deemed ineffective for failing to present mitigating evidence that merely would have been cumulative of evidence that was presented during a penalty hearing. Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 477 (1998); see also Commonwealth v. Abdul-Salaam, 570 Pa. 79, 808 A.2d 558, 562 n. 5 (2001). Consequently, Appellant cannot meet the arguable merit requirement of the ineffectiveness test.[18]

        139

        In addition, Appellant has failed to establish that had trial counsel interviewed these witnesses and presented their testimony, a different outcome likely would have resulted. Appellant presented nothing that established that the trial court would have imposed a life sentence if only it had heard additional evidence of appellants childhood, drug dependence, and dysfunctional marital relationship.

        140

        Appellant also cannot establish that trial counsels failure to obtain and review the various records identified above constituted ineffective assistance of counsel or that the PCRA court committed an error of law in ruling that trial counsel was not ineffective for failing to obtain that material. According to Appellant, trial counsel should have obtained Appellants school records because it showed that Appellant had an I.Q. in the high seventies to low eighties and thus was borderline mentally retarded. Appellants Brief, 81. Appellant ignores Dr. Cooke's testimony that he measured Appellants I.Q. in a range from 81 to 89, thereby demonstrating that Appellant, though of limited mental ability, was clearly not mentally retarded. Moreover, the fact that Appellant was able to hold jobs that required at least a modicum of skills demonstrated that Appellants school records would not have resulted in a different outcome had counsel obtained them and introduced them during the penalty hearing.[19] In view of the foregoing, Appellant has failed to establish that trial counsel acted unreasonably by not obtaining these records.

        141

        Next, trial counsel cannot be faulted for failing to obtain Appellants medical records. Trial counsel testified that he received no information from Appellant or members of his family alerting him to the fact that Appellant had suffered any injury or had medical problems affecting cognition. In addition, Appellant denied having any significant medical history when examined by Dr. Cooke. N.T. 9/30/97, 300. It is therefore clear that trial counsel cannot be faulted for failing to obtain evidence of which he had no reason to be aware. See Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 45-46 (2002) (holding that counsel cannot be deemed ineffective for failing to obtain records "uniquely" in possession of defendant and his family); see also Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 581 (2002) (plurality) (this Court refuse[s] to deem trial counsel ineffective for failing to present mitigation evidence that he did not know existed); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d [668] 717, 735 (2000) (same); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 383 (1986) (same).

        142

        With respect to Appellants drug records, trial counsel was not ineffective for failing to obtain them because Appellant has failed to establish that had counsel obtained them, the outcome of the penalty hearing would have been different. This is the case because Appellant has failed to show that these records contained any substantial information different from that already presented to the trial court. Moreover, trial counsel was aware of Appellants substance abuse problem and introduced evidence about it to the trial court. As noted above, counsel cannot be found ineffective for failing to introduce evidence that is merely cumulative of evidence already introduced into the record.

        143

        Finally, Appellant failed to establish that he had knowledge that a support order had been issued against him. Without such proof, Appellant cannot demonstrate that the issuance of the support order influenced his behavior on the night of the incident. Thus, Appellant cannot establish that trial counsel was ineffective for failing to obtain the order or introduce proof of its issuance during the penalty phase. See Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726 (2004) (holding that claims of ineffectiveness cannot be sustained in a vacuum).

        144

        Appellants claim that trial counsel was ineffective for failing to have him tested by a neuropsychologist also lacks merit. The record herein indicates that trial counsel had Appellant examined by a psychologist (Dr. Cooke) whose examination of Appellant failed to uncover any mental disabilities. As noted above, Dr. Cooke testified that he found no evidence that Appellant "suffered from a thinking disorder or psychosis or any kind of major affective disorders such as major depression or manic disorder." N.T. 10/2/97, 296. In addition, neither Appellant nor any member of his family advised trial counsel that Appellant suffered from neurological or mental deficits. Given these circumstances, trial counsel cannot be faulted for not securing additional testing of Appellant.

        145

        In Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507 (1999), trial counsel was accused of having been ineffective because he failed to provide all available records to his expert witness. According to the defendant, had trial counsel provided the additional records to his expert witness, it may have resulted in a "more thoroughly developed mental health mitigation case." 739 A.2d at 519. This court rejected the defendant's assertion that trial counsel had been ineffective and stated:

        146
        We agree with the trial court that Appellant has failed to prove, by a preponderance of the evidence, that the preparation and presentation by trial counsel of the mental health expert testimony was constitutionally ineffective. Appellant relies on the benefit of hindsight and downplays the diagnoses available to his counsel at the time his case was tried. Counsel testified that he provided Dr. Altman, who was his primary mental health expert, with as much information as he had, including substantial information concerning Appellant's social history and prior mental health problems. He relied on Dr. Altman to present the most favorable mental health mitigation case available, and he attempted to present this and the other expert testimony in a manner that would be understandable to, and believed by, the jury. Indeed, Appellant's counsel succeeded insofar as the jury found the Section 9711(e)(2) mitigator. This is not an instance where counsel failed to present a mental health mitigation case despite the presence of evidence to support such a case. Compare [669] Commonwealth v. Smith, 544 Pa. 219, 675 A.2d 1221 (1996), cert. denied, 519 U.S. 1153, 117 S.Ct. 1090, 137 L.Ed.2d 223 (1997). Rather, this is a case where a more competent evaluation by the professionals retained by Appellant may have resulted in a more thoroughly developed mental health mitigation case. However, our review of the PCRA hearing indicates that such failures, if any occurred, do not rest at the feet of Appellant's counsel, and that the court properly denied Appellant's claim of trial counsel's ineffectiveness.
        147

         

        148

        Id.

        149

        Instantly, as in Stevens, Appellant is arguing that trial counsel should have done more even though he had no tangible reason for doing so. Trial counsel testified that in his dealings with Appellant and Appellants family, he failed to discern anything that would have caused him to believe that Appellant had brain deficits. This belief was confirmed by Dr. Cookes examination of Appellant.[20] Given these circumstances, trial counsel cannot be faulted for not having Appellant examined by additional experts because the investigation he conducted was reasonable and failed to reveal any evidence showing that Appellant suffered from a mental disease or defect requiring further investigation. See Commonwealth v. John Wesley Brown, 582 Pa. 461, 872 A.2d 1139, 1150 (2005) (holding that where record at time of trial indicates that accused was not suffering from mental illness, counsel has no duty to investigate issue further); Uderra, 706 A.2d at 339-40 (holding that trial counsel was not ineffective for not introducing in mitigation evidence regarding defendants psychological problems because defendant failed to disclose them prior to trial). Accordingly, we conclude that the PCRA Court did not err in finding no merit to Appellants claim that trial counsel was ineffective during the penalty phase of the proceedings.

        150
         
        151
        9. Trial Counsel Was Ineffective for Failing to Object to the Introduction of Victim Impact Evidence During the Penalty Hearing
        152

         

        153

        Appellant complains that trial counsel was ineffective for not objecting to the presentation of victim impact testimony during the penalty phase of the trial.[21] Appellant asserts such testimony was inadmissible and should not have been presented because the comments of the prosecutor were inflammatory. In addition, Appellant claims that because the offense herein occurred prior to the effective date of relevant amendments to 42 Pa.C.S. § 9711, he is entitled to a new penalty hearing. See Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253 (1996) (holding that victim impact testimony was inadmissible in cases originating prior to the 1995 amendment to 42 Pa.C.S. § 9711).

        154

        No relief is due on this claim because Appellant failed to meet his burden of [670] proving that trial counsels failure to object to the prosecutors actions prejudiced him. First, the actions and comments of the prosecutor were innocuous insofar as they were fleeting and did not dwell on the victim. In numerous cases, this Court has refused to find prejudice under similar circumstances. See Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 414 (2003) (holding that brief victim impact testimony indicating that victim was "peaceful" and "nice" was not prejudicial); see also Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 447 (1999) (same).

        155

        Appellant cannot prove prejudice for a second reason. The PCRA court, sitting as factfinder, indicated that it was not influenced by the victim's photograph or the prosecutor's comments and that neither the photograph nor the comments had any effect on the verdict it ultimately rendered. PCRA Court Opinion, 6/30/07, 37-38. It is presumed that a trial court, sitting as factfinder, can and will disregard prejudicial evidence. See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179, 183 (1980); Commonwealth v. David Brown, 886 A.2d 256 (Pa.Super.2005). Thus, because Appellant has failed to prove that the outcome of the proceedings would have been different had trial counsel lodged an objection, he is not entitled to relief with respect to this claim.[22]

        156
         
        157
        PCRA COURT ERRORS
        158
        10. The PCRA Court Committed an Abuse of Discretion in Refusing to Allow Appellant to Introduce into Evidence or Even Marking as an Exhibit Certain Records During the PCRA Hearing.
        159

         

        160

        Appellant argues that the PCRA court committed reversible error by refusing to permit the defense to mark as an exhibit and introduce into evidence medical records pertaining to the victim, which indicated that she had undergone an abortion five years prior to the date of the slaying and that someone other than Appellant impregnated her. According to Appellant, the records should have been admitted because Appellant believed that his wife had been unfaithful and the evidence was relevant with respect to whether the killing was committed in the heat of passion. Appellant's Brief, 93.

        161

        The PCRA court declared that it committed no error in refusing to permit the defense to introduce the records because they were irrelevant; they contained information remote in time from the date of the incident and contained no information indicating that Appellant was aware that the abortion took place or his reaction to that information. PCRA Court Opinion, 11/2/07, 6-7. The PCRA court refused to allow the defense to mark the records as an exhibit to protect the victim's privacy. Id. at 5. The PCRA court also noted that the defense did introduce testimony during the PCRA hearing indicating that the victim had an abortion and told others that Appellant had not fathered the child. N.T. 10/29/03, 512-17, 540-43, 594-97. We find no error in the rationale employed by the PCRA court, and we therefore hold this claim is meritless.

        162
         
        163
        11. The PCRA Court Erred in Applying the Rape Shield Law to Exclude Testimony that the Victim Was Impregnated by Someone Other than Appellant.
        164

         

        165

        During the evidentiary hearing Appellant's counsel asked trial counsel whether [671] Appellant told him that the victim had had an abortion after getting pregnant by another man. The Commonwealth objected arguing that the Rape Shield Law, 18 Pa. C.S. § 3104, prohibited the dissemination of such information and that the information the defense was seeking to elicit was irrelevant because the alleged abortion occurred five years prior to the slaying. The PCRA court sustained the objection. N.T. 10/27/03, 28-30. Appellant asserts that the PCRA court erred by sustaining the Commonwealth's objection because it relied upon the Rape Shield Law to do so.

        166

        This claim is meritless. The PCRA court explained in its Pa.R.A.P. 1925(a) opinion that it did not sustain the Commonwealth's objection based on the application of the Rape Shield Law but rather on relevancy and hearsay grounds. PCRA Court Opinion, 11/2/07, 5. Moreover, during the PCRA hearing the PCRA court later acknowledged that the Rape Shield Law did not apply and could not be used to exclude evidence relating to the victim's medical history. N.T. 10/29/03, 426-27. In addition, since other witnesses later testified at the PCRA hearing that the victim had an abortion after being impregnated by another man, any error resulting from the PCRA court's ruling constituted harmless error. Accordingly, Appellant is entitled to no relief on this claim.

        167
         
        168
        12. The PCRA Court Abused Its Discretion in Refusing to Provide the Defense with Certain Evidence Including the Negatives of the Crime Scene Photographs.
        169

         

        170

        Appellant submits that the PCRA court committed an abuse of discretion when it refused to order the Commonwealth to provide the defense with a computer disc containing high-resolution digitized scans of the negatives of the crime scene photographs. Appellant asserts that he requested the negatives be digitally scanned onto a disc because the negatives contain detail that may not appear in a photograph and the scanned negatives can be more closely examined. Appellant's Brief, 95-96. According to Appellant, by denying this request, the PCRA court hindered him in his attempt to prove that the victim was not raped, when rape served as the basis for the sole aggravating circumstance found by the trial court.

        171

        The PCRA court denied Appellant's request because the Commonwealth provided the defense with copies of the crime scene photographs, "first generation" prints of the photographs, and a contact sheet containing copies of the negatives. PCRA Court Opinion, 11/2/07, 7. The PCRA court also relied on the fact that the Pennsylvania State Police, the governmental agency having possession of the negatives, did not have equipment to scan the negatives onto a disc and the contact sheet containing the negatives were of a quality on a par with digital scans. Id. We find no error in the rationale employed by the PCRA court to deny this claim and therefore hold that the trial court did not commit an abuse of discretion.

        172

        Rule 902(E)(2) of the Pennsylvania Rules of Criminal Procedure provides:

        173
        (E) Requests for Discovery
        174
        (2) On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.
        175

         

        176

        Pa.R.Crim.P. 902(E)(2). The denial of a defense request seeking discovery materials is reviewed under an abuse of discretion standard. Sattazahn, 952 A.2d at 662; Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 261 (2006). In Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 86 [672] (2008), this Court recently discussed "abuse of discretion," stating:

        177
        In Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000), we reiterated the well-known definition of "abuse of discretion" as follows:
        178
        The term `discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
        179

         

        180

        960 A.2d at 86 (citation omitted). The application of this definition to the instant matter leads us to conclude that the PCRA court did not commit an abuse of discretion in refusing to provide the digitized negatives to the Appellant. According to the trial court, the defense was provided with whatever photographic evidence the Commonwealth had in its possession. Moreover, the Commonwealth did not have the equipment needed to comply with Appellant's request. Under the circumstances, Appellant's claim is meritless.

        181
        CUMULATIVE EFFECT OF THE ERRORS
        182
         
        183
        13. The Cumulative Effect of the Errors in This Case Entitles Appellant to Relief.
        184

         

        185

        In his final claim, Appellant argues that he is entitled to relief because of the cumulative prejudicial effect of the errors he alleged and raised in this appeal. This Court has repeatedly stated that "no number of failed claims may collectively warrant relief if they fail to do so individually." Washington, 927 A.2d at 617; see also Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 56 (2008). Therefore, this issue is without merit.

        186
         
        187
        CONCLUSION
        188

         

        189

        Accordingly, we affirm the ruling issued by the PCRA court denying Appellant's request for post-conviction collateral relief.[23]

        190

        Justices BAER, TODD, and McCAFFERY join the opinion.

        191

        Chief Justice CASTILLE files a concurring opinion in which Justice EAKIN joins.

        192

        Justice SAYLOR files a dissenting opinion.

        193

        Chief Justice CASTILLE, concurring.

        194

        I join the Majority Opinion, with the exception of the points addressed below. I write separately to express my minor disagreement with the Majority's analysis of two of appellant's claims and to address a recurring and important point raised in Mr. Justice Saylor's dissenting opinion. My reasoning follows:

        195
         
        196
        Claim V
        197

         

        198

        Claim V faults the PCRA court on procedural grounds, for refusing to permit appellant to amend his PCRA petition in order to present testimony from Dr. Callery at the PCRA hearing related to his changed opinion as to whether a rape occurred.

        199

        [673] Like Justice Saylor, I disagree with the Majority's resolution of this claim grounded upon the sufficiency of the evidence and the Majority's related conclusion that the claim has been previously litigated. Appellant's claim clearly challenges the PCRA court's procedural ruling and the related claim of trial counsel ineffectiveness for failing to challenge the competency of Dr. Callery's testimony, rather than the sufficiency of the evidence supporting the rape conviction.

        200

        Nevertheless, I concur in the result. I disagree with the Majority's characterization of the claim as previously litigated, since the substance of appellant's challenge is to the PCRA court's ruling that denied his late request to supplement the PCRA petition with Dr. Callery's changed testimony. This claim has not been previously litigated as it relates to a procedural ruling by the court immediately below. However, I see no abuse of discretion in denying the belated request to supplement the petition, and I do not see why Dr. Callery's alleged changed opinion (or "elaboration" as appellant would have it) was necessary to the substantive claims which sound in ineffective assistance of counsel.[1]

        201
         
        202
        Claim VI
        203

         

        204

        In this claim, appellant alleges that trial counsel's ineffectiveness rendered invalid his waiver of his right to a jury trial and his right to testify. Appellant develops this claim primarily in terms of the jury waiver, faulting counsel's advice to waive, and then, respecting the right to testify, merely states that "[t]he exact same [sic] reasoning applies to his waiver of the right to testify." Brief of Appellant, 50. Although I join the Majority Opinion concerning this dual claim, I would also briefly note that in ruling on appellant's claim of ineffectiveness related to his right to testify, the PCRA court concluded that the claim was without merit, since appellant opted not to testify despite counsel's advice to the contrary. While the Majority notes this fact in passing, it intimates that we would have to "guess whether counsel's ineffectiveness interfered with [appellant's] right to testify" and that we will not engage in such speculation. Respectfully, I see no need to go that far, given that the PCRA court aptly pointed out that counsel cannot be deemed ineffective, since he encouraged appellant to testify, only to have appellant refuse. Thus, in this instance, any complaint regarding appellant's decision not to testify is placed squarely on appellant's shoulders and cannot support a claim of trial counsel ineffectiveness. Appellant inexplicably fails to account for this dispositive fact in asserting that his twin claims depend on the same reasoning.

        205
         
        206
        Claim VIII
        207

         

        208

        I join the Majority on this claim and write only to address two points raised by Justice Saylor's Dissenting Opinion. First is the role of recent decisions from the U.S. Supreme Court rendered on federal habeas review of state court convictions, such as Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (1999), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). I have explicated in much greater detail elsewhere that, by definition, these decisions cannot be interpreted [674] as establishing any new federal constitutional rule or standard. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1148 (2008) (Castille, C.J., concurring). Rather, the High Court in these decisions merely "applied" the governing ineffectiveness standard that was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to the facts of cases tried after Strickland became the law of the land. Indeed, the High Court most recently confirmed that this was the case in a unanimous per curiam opinion rendered in Bobby v. Van Hook, 558 U.S. ___, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), when it applied the Strickland "effective assistance of counsel" standard in reviewing an ineffectiveness claim based upon counsel's alleged failure to prepare adequately for the penalty phase. Notably, the Court emphasized both the flexibility of the Strickland standard as well as Strickland's teaching that counsel's conduct must be judged according to standards in place at the time counsel acted:

        209
        The Sixth Amendment entitles criminal defendants to the "effective assistance of counsel"—that is, representation that does not fall "below an objective standard of reasonableness" in light of "prevailing professional norms." That standard is necessarily a general one. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Restatements of professional standards, we have recognized, can be useful as "guides" to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.
        210

         

        211

        Van Hook, 558 U.S. at ___, 130 S.Ct. at 16.[2] Furthermore, the Van Hook opinion stressed that reasonableness can only be assessed in light of the prevailing professional norms at the time of trial by making clear that a court should not look to ABA guidelines that were announced eighteen years after the trial. Indeed, the Court made it abundantly clear that ABA guidelines should not be treated as "inexorable commands" with which all capital defense counsel must fully comply, but are "`only guides' to what reasonableness means, not its definition." Id. at ___, 130 S.Ct. at 17.

        212

        Additionally, the Court's review in Wiggins, Williams and Rompilla was specifically circumscribed by the terms of the Antiterrorism and Effective Death Penalty Act (AEDPA), which authorizes federal courts to upset final state judgments only if the state court analysis of a federal claim is contrary to, or involves an unreasonable application of, existing, binding precedent from the High Court. Observers can and do debate whether the court majorities in Wiggins, Williams and Rompilla were faithful to AEDPA's deference standard— notably all of these decisions, involving a controlling question of whether a state court judgment was objectively reasonable, were sharply divided. What cannot be debated is that: (1) the cases did not purport to break new constitutional ground; and (2) the decisions bind us, and they are important because those cases, [675] like the more recent pre-AEDPA decision in Van Hook, stand as the High Court's directive as to what was commanded by Strickland itself. See also Porter v. McCollum, 558 U.S. ___, ___, 130 S.Ct. 447, 452, ___ L.Ed.2d ___, ___ (2009) (confirming capital defendant only entitled to relief if he can establish that the state court's rejection of his ineffectiveness claim was "contrary to or involved an unreasonable application of" Strickland).

        213

        Obviously, any court addressing a case posing materially identical circumstances would be hard-pressed to deviate from the holding in a Strickland-application case decided under AEDPA. See Porter, supra (explaining that relief was warranted because the case was similar to Wiggins as "counsel did not even take the first step of interviewing witnesses or requesting records"). But, quite frankly, there is no easy answer to the question of what to do with good faith decisions rendered by courts in the long years between when the Court announced Strickland in 1984, and then announced what it necessarily meant in cases such as Wiggins, Williams, Rompilla, and now Van Hook and Porter. In that long interregnum, courts operating in perfectly good faith may have rendered decisions that now seem to be in tension with some of the Court's later Strickland-application decisions.

        214

        Theoretically, since the Strickland-application decisions by definition purport to establish no new law, the continuing validity of a pre-Wiggins decision should be measurable by comparison to Strickland itself. In point of fact, the High Court signaled as much when commenting on its Wiggins and Rompilla decisions in light of the Strickland standard in Van Hook by stating:

        215
        This is not a case in which the defendant's attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S., at 525, 123 S.Ct. 2527, or would have been apparent from documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-93, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). It is instead a case, like Strickland itself, in which defense counsel's "decision not to seek more" mitigating evidence from the defendant's background "than already was in hand" fell "well within the range of professionally reasonable judgments."
        216

         

        217

        Van Hook, 558 U.S. at ___, 130 S.Ct. at 19. Similarly, in Porter, the Court was clear that the inquiry was guided by whether the Florida Supreme Court "unreasonably applied Strickland." Porter, 558 U.S. at ___, 130 S.Ct. at 453 (emphasis added). Thus, the most recent jurisprudence confirms that Strickland remains the ultimate test by which we as a court must measure claims of ineffectiveness.

        218

        For my part and consistently with the High Court's most recent pronouncements, I do not believe that we are required to jettison past approaches, analyses, or holdings in this Court's Strickland cases, unless: (1) they are squarely precluded by a decision from the U.S. Supreme Court, such as Strickland, which existed when we rendered our decision; or (2) it is beyond reasonable debate that our decision is both materially identical to, and contrary to, one of the later Strickland-application decisions. In this case, I have no difficulty with the Majority's application of our precedent.

        219

        Second, the Dissenting Opinion expresses concern with appellant's argument that the admission of appellant's written "background history and statement" was materially prejudicial, and suggests that trial counsel's strategy in proffering the statement was "seriously misguided." Dissenting Op. at 679. Although ultimately the [676] admission of the statement may not have advanced appellant's cause, I would merely add that trial counsel's statements at the PCRA hearing reveal that he was struggling with the manner in which he could proffer appellant's version of the events leading up to and on the night in question, since appellant had refused to testify. N.T., 10/27/03, at 78. Counsel believed that the best way to do this was to urge appellant just to "[tell] things as it was [sic]" by writing a statement in his own words, explaining the events leading up to and on the night in question. Id. at 66. Based on the circumstances facing counsel, I would not find counsel ineffective with respect to this decision.

        220

        Justice EAKIN joins this concurring opinion.

        221

        Justice SAYLOR, dissenting.

        222

        I dissent, since it appears to me that the majority opinion does not sufficiently address material arguments or conform to prevailing law in a number of areas.

        223
         
        224
        Guilt Phase
        225

         

        226

        Claim I—The majority first rejects Appellant's claim of deficient stewardship in the investigation and presentation of evidence that the victim was killed in the heat of passion, reasoning that, even if Appellant's additional evidence were credited, "it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim." Majority Opinion, at 650. The majority's rationale, however, conflicts with the PCRA court's (and fact finder's) reasoning in addressing Appellant's ineffectiveness claims, in which that court praised trial counsel for doing "an exceptional job of getting evidence and argument regarding heat of passion into the record." PCRA Court Opinion, slip op. at 29.

        227

        In this regard, the majority's substantive analysis concerning the unavailability of a heat-of-passion defense also does not take into account: whether there is any role for individual characteristics of the defendant in the analysis (such as whether a defendant is mentally retarded or brain damaged); the extent to which the cumulative impact of a series of events may be considered in assessing provocation, see Commonwealth v. McCusker, 448 Pa. 382, 389 & n. 8, 292 A.2d 286, 289 & n. 8 (1972); or various of the actual events alleged by Appellant and, to one degree or another, reflected in evidence of record. These include Appellant's release from incarceration a short time before the killing; his initial residence with his mother; Appellant's daughter's, the victim's, and her sister's alleged efforts to entreat him back into a relationship with the victim; Appellant's emotional uncertainty but eventual acquiescence; the service of a support order on Appellant on the day of the killing; the allegation that the victim previously had aborted another man's child during the marriage; and/or the number and nature of the victim's wounds, which tend to support his theory that he lost control.[1] I also differ with the majority's characterization of the above circumstances, to the degree they might be accepted by a fact [677] finder, as being analogous to "a history of minor disputes and allegations of past infidelity." Majority Opinion, at 651.

        228

        For the above reasons, and in the absence of a more directed assessment of Appellant's arguments as summarized above, I am unable to join the majority's disposition of the first claim.

        229

        Claim 2—The majority next rejects the claim that trial counsel was ineffective for failing to investigate and present expert testimony to rebut the Commonwealth's assertion that the victim was raped, crediting trial counsel's belief that "the evidence made it pellucidly clear to him that no rape occurred and ... his belief that anyone who reviewed the evidence would draw the same conclusion he did." Majority Opinion, at 653. The difficulty with trial counsel's, and the majority's, position is that counsel's beliefs proved to be demonstrably erroneous, as a Commonwealth expert witness described the killing as a "classic rape-homicide" and the fact finder correctly found "ample evidence to prove that a rape occurred even without Dr. Callery's testimony," PCRA Court Opinion, slip op. at 10, with this Court confirming on direct appeal that the verdict on the offense of rape was consistent with the evidence. See Commonwealth v. Miller, 555 Pa. 354, 367-68, 724 A.2d 895, 901 (1999). Moreover, hindsight is not required to question counsel's confidence, as well as his corresponding decision to forego further preparation, in light of the circumstances surrounding Appellant's crimes, where there was undisputed evidence of intercourse and substantial circumstantial evidence of forcible compulsion. Indeed, at least in the absence of the assessments provided by Appellant's post-conviction experts, it is difficult to consider trial counsel's belief that no fact finder would render a verdict of guilt on the rape charge to be rational, let alone reasonable.

        230

        Claim 5—Claim 5 concerns Appellant's challenge to the PCRA court's refusal to permit Dr. Callery to testify in the post-conviction proceedings that he did not hold the opinion that a rape had occurred to a reasonable degree of scientific certainty. The majority indicates that "[t]here is no indication in the record that Dr. Callery would have advised trial counsel before the trial commenced that it was his belief that no rape occurred if only trial counsel had interviewed him." Majority Opinion, at 659. The majority's reasoning, however, is unresponsive to the argument presented. Appellant's argument is that trial counsel failed to adduce that Dr. Callery did not hold his opinions to the requisite degree of scientific certainty to justify their admission into evidence. See Brief for Appellant at 39-42. Appellant supports his contention, inter alia, with the testimony of post-conviction experts and Dr. Callery's own declaration indicating:

        231
        3. In my view, the evidence in this case that I reviewed, and was aware of, is plainly consistent with any of the following scenarios: that intercourse occurred before Ms. Miller was killed and then she was killed; that intercourse occurred while she was being stabbed; or that intercourse occurred after she had been killed.
        232
        4. Because of the number of plausible scenarios, I do not hold the opinion to a reasonable degree of medical and scientific certainty that Ms. Miller was killed while the assailant was engaging in sexual intercourse with her. I cannot state to a reasonable degree of medical and scientific certainty that Ms. Miller was raped at or around the time she was killed. To the extent that my testimony in this case appears to conflict with any of these conclusions, my actual opinion at the time of trial is stated in this affidavit.
        233
        * * *
        234
        [678] 7. Mr. Miller's trial attorney did not interview me before I testified in Mr. Miller's case. If he had, I would have told him the things I say in this affidavit and testified to them on the witness stand.
        235

         

        236

        Declaration of Richard T. Callery, M.D., dated January 26, 2005. I cannot support a disposition based on an inaccurate characterization of a claim.

        237
         
        238
        Penalty Phase
        239

         

        240

        Claim 8—In resolving Appellant's claim that his trial counsel was ineffective for failing to investigate and present available mitigating evidence during the penalty hearing, the majority initially appears to approve trial counsel's investigation. See Majority Opinion, at 666-67. Trial counsel testified, however, that he did not obtain various available life history records; he interviewed only two family members prior to trial; he interviewed another for the first time in the courthouse prior to his testimony; he did not obtain a copy of the file for the domestic relations case involving Appellant and the victim; and he did not consider investigating the psychiatric significance of his client's claim to having suffered a blackout during the course of the killing. N.T., October 27, 2003, at 22-32, 100. It therefore seems apparent to me from the record that counsel acquired a rudimentary knowledge from a narrow set of sources, a practice disapproved by the United States Supreme Court. See Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156 L.Ed.2d 471 (2003).

        241

        The majority next couches the post-conviction evidence as merely cumulative of the evidence presented at trial. See Majority Opinion, at 666-67. I believe, however, there are qualitative differences in the evidence which should be recognized. In my view, the post-conviction evidence presented a better case for life than that which was presented at trial, particularly in terms of the depth of the explanatory-type mitigation presented through the experts.[2]

        242

        The majority also credits trial counsel for presenting Appellant's written "background history and statement" concerning Appellant's life history, the abuse Appellant observed and was subject to while growing up, as well as evidence of his drug use. See Majority Opinion, at 666-67. The majority, however, ignores Appellant's substantial argument, as follows, that the document, in fact, was materially prejudicial:

        243
        [T]rial counsel affirmatively harmed Appellant by presenting to the Court a "statement" hand-written by Appellant which could not possibly have aided Appellant in his case for life. The statement... contained numerous profanities and was interpreted by the trial court in its sentencing deliberations as shifting the responsibility for the incident to the deceased. Such a statement, presented in a vacuum and without any psychiatric explanation for the paranoia and rage that developed in Appellant during his formative years, could easily have been construed by the court as both disrespectful and void of remorse.[fn] In fact, in its sentencing decision, the lower court stated "I also take note of the total lack of remorse of the defendant in connection with the homicide... [I]t troubles me that the defendant has expressed no remorse whatsoever in connection with this crime. And in fact, that in the penalty phase of the hearing, the letter that was handed up [679] basically implied that most of the fault belonged on the victim in connection with this matter." NT 10/27/97, at 10-11.
        244
        [fn] The presentation of this letter is so tactically harmful that one wonders if counsel read it before handing it over to the judge.
        245

         

        246

        Brief for Appellant at 86-87 (emphasis in original).

        247

        In line with Appellant's argument, a review of Appellant's statement confirms that the strategy of presenting it to a fact finder was seriously misguided, because the statement contains a multitude of inflammatory remarks. For example, it is replete with blame cast upon the victim, which the trial judge conveyed both at sentencing and in the post-conviction proceedings was offensive. See, e.g., N.T., October 28, 2003, at 383 (reflecting the trial/PCRA judge's comment, "I'm not going to sit here and listen to this woman be trashed just to present this heat of passion defense mitigated testimony."). Further, although trial counsel was attempting at the penalty hearing to portray the killing as having occurred in the heat of passion, the statement starkly reflects a far deeper and more entrenched disregard, on Appellant's part, for the victim's life. See, e.g., N.T., October 2, 1997, Ex. D-4 (reflecting Appellant's description of a prior assault upon the victim, stating, "This is when I put the gun to Sherry's head and she was lucky she didn't die that day cause I was pissed."). Similarly, in addressing an incident at a bar, Appellant indicates he told a man "if you yell anymore at the women I'm going to ram my pool stick down your throat." Id. Particularly when considered in light of the note Appellant penned in the aftermath of the killing, the "background history and statement" suggests deep-seated violent, volatile qualities, in substantial tension with the defense theory of an isolated, sudden, uncontrollable rage experienced by an otherwise non-violent individual.[3] It is difficult to envision why any competent attorney would put such a statement before the fact finder in the form in which it was presented.

        248

        With regard to the distinct matter of trial counsel's failure to obtain a copy of the support order during his penalty investigation, the majority indicates, "Appellant failed to establish that he had knowledge that a support order had been issued against him." Majority Opinion, at 668. I believe it should at least be acknowledged, however, that Appellant discussed the support order and its impact upon him in his handwritten statement presented to the trial judge at the penalty hearing. See N.T., October 2, 1997, Ex. D-4. Thus, there was some evidence (albeit of questionable quality) of knowledge on Appellant's part.

        249

        The majority also relies substantially on Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507 (1999). See Majority Opinion, at 668-669. Stevens, however, predated the United States Supreme Court's decisions in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Wiggins, 539 U.S. at 510, 123 S.Ct. at 2527, which a number of Justices have indicated reflect a different set of standards than were (and perhaps are) being applied in at least some of our decisions, such as Stevens. This implicates the divide concerning the application of Williams and Wiggins in Pennsylvania, as reflected in Commonwealth v. Romero, 595 Pa. 275, 938 A.2d 362 (2007) (plurality in relevant regard). Compare id. at 318-19, 938 A.2d at 387-88 (indicating that "[p]rior to Williams and its progeny, case law regarding what is required of counsel during the penalty phase was not as exacting [680] as today" and declining to apply Williams and Wiggins to cases litigated prior to their issuance), with id. at 335-37, 938 A.2d at 398-99 (Saylor, J., concurring and dissenting) (advancing the position that Williams and Wiggins apply to prior cases, as the decisions were rendered in the post-conviction context and the United States Supreme Court explained in Wiggins that it made no new law).

        250

        In summary, I do not agree with many of the reasons presented by the majority in support of its decision to affirm the penalty verdict. Moreover, although the PCRA court's analysis may implicitly suggest it would not have rendered a different verdict had the post-conviction evidence been presented to the court at the penalty hearing, I do not agree with the majority that such a finding is explicit in the opinion. See Majority Opinion, at 667 n. 18.

        251

        Furthermore, the PCRA court's opinion embodies a looseness which is inconsistent with our requirements in capital post-conviction cases. For instance, in its finding that Dr. Armstrong's post-conviction testimony was merely cumulative of the testimony of Dr. Cooke, which was presented at the penalty hearing, the PCRA court indicates that the testimony of both experts reflected the same mitigating circumstance, which it described as a lack of capacity to appreciate criminality and conform conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3). See PCRA Court Opinion, slip op. at 38.[4] The material passage of the opinion, however, fails to recognize that the testimony given by Julie B. Kessel, M.D., psychiatrist, lends support to Appellant's claim of an additional mitigator, namely, that he was under the influence of extreme mental or emotional disturbance at the time of his crimes, 42 Pa.C.S. § 9711(e)(2). See, e.g., N.T., October 29, 2003, at 548. Therefore, the basis for the PCRA court's conclusion on the matter is erroneous. See generally Commonwealth v. Beasley, 600 Pa. 458, 489-90, 967 A.2d 376, 395 (2009) (commenting on material imprecision in the decision-making of a capital post-conviction court in connection with a remand, indicating, "We intend to provide an orderly system of post-conviction adjudication that produces fair and just results, anchored upon governing law and rational reasoning.").

        252

        [1] This was not the first time Appellant had exhibited jealousy with respect to his wife. In July 1994 and April 1995 Appellant pleaded guilty to various crimes arising out of incidents involving Sherry Miller. During the second incident, Appellant held a gun to his wife's head. He pleaded guilty to aggravated assault and received a sentence of nine to twenty-three months incarceration. He resumed living with his wife following his release from jail.

        253

        [2] Before leaving, Sherry used the telephone in the bar to page a man named Sean Smith. Mr. Smith, who dated Sherry while Appellant was previously incarcerated, shortly thereafter called the bar telephone in response to the page.

        254

        [3] It was explained that had the victim moved following the incident, such movement would have caused bodily fluids to be spread to various other parts of her body.

        255

        [4] The matter was assigned administratively to the trial court for disposition (PCRA Court).

        256

        [5] Jurisdiction is vested in this Court by 42 Pa.C.S. § 9546(d) which mandates that review of the denial of post-conviction relief be conducted by this Court.

        257

        [6] At the PCRA evidentiary hearing, Appellant presented the testimony of Julie Kessel, M.D., a psychiatrist, and Charles Wetli, M.D., a medical pathologist. Dr. Kessel testified that it was her opinion that the killing occurred in the heat of passion. Dr. Wetli testified that the manner of killing demonstrated that the killer was angry and emotionally charged. N.T. 10/28/03, 334; N.T. 10/29/03, 531, 546-47.

        258

        [7] The PCRA court also noted that both Dr. DeForest and Dr. Wetli testified that they could not rule out the possibility that a rape occurred. PCRA Court Opinion, 6/30/07, 10-11. Finally, the PCRA court determined that Dr. Wetli's testimony was not entirely inconsistent with Dr. Callery's insofar as Dr. Wetli testified, "the attack and the assault to the vaginal area were concomitant or occurring within the same general time frame." Id. at 12. The PCRA court's conclusion, in light of the evidence, is correct.

        259

        [8] Torres testified that he became unsure that Appellant threatened to kill his wife after he believed he heard other inmates threaten to kill their wives. Torres stated that he could not tell whether the threats were actually uttered by Appellant and the other inmates or whether they emanated from the voices in his head. N.T. 10/28/03, 225-26.

        260

        [9] The law is clear that specific intent to kill may be inferred from the use of a deadly weapon on a vital part of another person's body. Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 130 (2008); Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916, 921 (2008).

        261

        [10] In the affidavit Dr. Callery avers in part, "I cannot state to a reasonable degree of medical and scientific certainty that Ms. Miller was raped at or around the time she was killed. To the extent that my testimony in this case appears to conflict with any of these conclusions, my actual opinion at the time of trial is stated in this affidavit." Appendix to Appellant's Brief, Exhibit 7, paragraph 4.

        262

        [11] An issue has been previously litigated if "the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2).

        263

        [12] Appellant claims that these issues have not been previously litigated because the "issue of Dr. Callery's testimony reaching `reasonable medical certainty' was never raised." Appellant's Brief, 47. It is clear from reviewing Appellant's Brief, together with the evidence he argues was erroneously excluded, that these claims concern the sufficiency of the evidence.

        264

        [13] Appellant's claim that trial counsel's ineffectiveness vitiated his waiver of the right to a jury trial and to testify are premised on the claims of ineffectiveness raised in Appellant's previous issues, including trial counsel's failure to investigate expert and lay testimony supporting a heat of passion defense, expert and lay testimony indicating that a rape did not occur, and expert and lay testimony indicating that Appellant suffered from brain damage. Appellant's Brief, 50.

        265

        [14] As noted above, trial counsel represented Appellant on appeal. Thus, Appellant is excused from having to "layer" his claims of ineffectiveness, i.e., assert that both trial counsel and appellate counsel were ineffective for failing to raise and preserve this issue.

        266

        [15] Having ruled that Appellant has failed to establish prejudice, we need not consider the adequacy of the waiver colloquy at issue. Moreover, we reject Appellant's additional claim that the prejudice stemming from trial counsel's failure to object was that at least one juror may have voted to impose a life sentence. Appellant's Brief, 63. See Mallory, supra.

        267

        [16] Appellant also asserts that trial counsel was ineffective for not investigating and presenting expert testimony to rebut that a rape occurred. This claim mirrors that raised in Issue 2 above. Consequently, there is no need to discuss it a second time here.

        268

        [17] Appellant allegedly consumed twelve beers and ingested a gram of methamphetamine.

        269

        [18] Although Appellant claims that the mitigation evidence presented during the penalty hearing amounted to a "hollow shell" of the available evidence, and therefore, counsel should be declared to have been ineffective for failing to gather it, Appellant ignores the lower court's finding that the additional evidence would not have resulted in a different verdict.

        270

        [19] Appellant's brother Kenneth testified that he never observed anything suggesting that Appellant was mentally challenged. N.T. 10/29/03, 503-05.

        271

        [20] Appellant's brother Kenneth denied that Appellant suffered from mental deficits. N.T. 10/29/03, 503-05.

        272

        [21] "Generally, only those statements which describe qualities of the victim and are designed to show the victim's uniqueness as an individual fall within the rubric of `victim impact evidence.'" Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1185 (2005); see also Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253, 1259 n. 11 (1996). During the penalty hearing, Barbara Miller, the daughter of Appellant and the victim, held a picture of the victim as she testified and showed it to the trial judge when asked to do so by the prosecutor. N.T. 10/2/97, 289-90. In addition, the prosecutor commented that other family members declined a request that they testify because doing so would be too emotional. The prosecutor also stated that the victim's death had a "tremendous and terrible impact on [the victim's] family." N.T. 10/2/97, 291.

        273

        [22] We note that a review of the prosecutor's closing argument during the penalty phase indicates that the prosecutor did not comment upon the evidence he presented during the penalty hearing. N.T. 10/2/97, 325-29.

        274

        [23] The Prothonotary of the Supreme Court is directed to transmit the entire record in this case to the Governor in accordance with 42 Pa.C.S. § 9711(i).

        275

        [1] I am also convinced by the PCRA court's alternative rationale that there was sufficient circumstantial evidence supporting the rape, as explained by the PCRA court earlier in the opinion, when it states that even without the testimony of Dr. Callery, the evidence was sufficient. Thus, I agree with the Majority's observation that appellant cannot establish that he was prejudiced by trial counsel's alleged ineffectiveness. See Majority Op. at 657-58.

        276

        [2] Although Justice Alito wrote a separate concurring opinion in one case, he began the responsive opinion by stating, "I join the Court's per curiam opinion...." Justice Alito would give no "special relevance" to the 2003 ABA Guidelines in determining whether an attorney's performance meets the standard for effective representation required by the Sixth Amendment. Van Hook, 558 U.S. at ___, 130 S.Ct. at 20.

        277

        [1] In the statement presented to the trial judge at the penalty hearing, and in his conversations with the penalty-phase and post-conviction experts, Appellant also related that the event immediately precipitating the killing was the victim's indication—just after having engaged in sexual relations with Appellant— that he was to leave the marital residence and that another man would be moving in with her. See N.T., October 2, 1997, Ex. D-4; N.T., October 29, 2003, at 446.

        278

        [2] It is a separate question, discussed below, whether the degree of difference is enough to justify a finding of prejudice. Presently, my focus is on the majority's cumulativeness determination.

        279

        [3] The statement also reflects that Appellant was an apparently unrepentant drug dealer.

        280

        [4] The actual formulation of the mitigator is: "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired." 42 Pa.C.S. § 9711(e)(3) (emphasis added).

      • 2.2.4 People v. Casassa

        1
        427 N.Y.S.2d 769
        2
        49 N.Y.2d 668, 404 N.E.2d 1310
        3
        The PEOPLE of the State of New York, Respondent,
        v.
        Victor CASASSA, Appellant.
        4
        Court of Appeals of New York.
        5
        April 1, 1980.
        8

         

        9

        [404 N.E.2d 770] Anne C. Feigus and Ronald P. Fischetti, New York City, for appellant.

        10

        Denis Dillon, Dist. Atty. (Judith Rubinstein Sternberg and William C. Donnino, Mineola, of counsel), for respondent.

        11

        OPINION OF THE COURT

        12

        JASEN, Judge.

        13

        The significant issue on this appeal is whether the defendant, in a murder prosecution, established the affirmative defense of "extreme emotional disturbance" which would have reduced the crime to manslaughter in the first degree.

        14

        On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter's tragic death. They met in August, 1976 as a result of their residence in the [404 N.E.2d 771] same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love" with him. Defendant claims that Miss Lo Consolo's candid statement of her feelings "devastated him."

        15

        Miss Lo Consolo's rejection of defendant's advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo's on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo's apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo's bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide."

        16

        Defendant's final visit to his victim's apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo's rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead."

        17

        The following day the police investigation of Miss Lo Consolo' death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim's apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.

        18

        The police accepted his offer of co-operation and requested that he accompany them to the Nassau County police headquarters in Mineola to discuss the matter further. On the way to Mineola, defendant was informed of his constitutional rights. He indicated that he understood his rights and that he nonetheless wished to co-operate. Defendant was interrogated by police for some nine and one-half hours thereafter and at 5:00 a. m. on the morning of March 2, 1977, he fully confessed to the murder of Victoria Lo Consolo, giving the police several oral and written statements detailing his involvement in the crime.

        19

        During the course of defendant's interrogation, his mother, worried because her son had not appeared at a planned social gathering, telephoned the Hempstead police to report her son as a missing person. She made several calls to the Hempstead Police Department and at least one to the Nassau County Police Department's seventh precinct in Manhasset between the hours of 11:00 p. m. on March 1, 1977 and 3:00 a. m. on March 2, 1977, and was informed by the officers at these stations that her son's whereabouts were unknown. She then telephoned the apartment of Victoria Lo Consolo. The officer on duty there told her of the murder and gave her no further information, but said that the police would return her call. At 4:00 a. m., having received no further information, she called the apartment again. This time another officer gave her a telephone number to call to seek further information about her son. A call to this number at 5:00 a. m. was also unavailing. However, a subsequent call to the Hempstead police yielded yet another number at the Nassau County Police Department. [404 N.E.2d 772] When Mrs. Casassa called this number, she was accurately informed that her son was held for questioning as a suspect in the Lo Consolo homicide. Thereafter, she came to the station and arranged to have counsel provided for her son.

        20

        On March 8, 1977, defendant was indicted and charged with murder in the second degree. Defendant made several pretrial motions seeking to suppress his statements to police and several pieces of real evidence which had been given to police during questioning. After a hearing, the motions were denied.

        21

        Defendant waived a jury and proceeded to trial before the County Court. The minutes of the suppression hearing were incorporated into the trial transcript and defendant's confessions were received into evidence. The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance". (Penal Law, § 125.25, subd. 1, par. (a).) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo and that the course which their relationship had taken, combined with several personality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.

        22

        In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance" within the meaning of section 125.25 (subd. 1, par. (a)) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation."

        23

        The trial court in resolving this issue noted that the affirmative defense of extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defense, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant's emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant's emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.

        24

        On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance". It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd. 1, par. (a)) of the Penal Law. We cannot agree.

        25

        Section 125.25 (subd. 1, par. (a)) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." This defense allows a defendant charged with the commission of acts which would otherwise constitute [404 N.E.2d 773] murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree. (Penal Law, § 125.25, subd. 1, par. (a); People v. Patterson, 39 N.Y.2d 288, 302, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)

        26

        In enacting section 125.25 (subd. 1, par. (a)) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of the Model Penal Code (see § 201.3, subd. (1), par. (b) (Tent Draft No. 9)). The only substantial distinction between the New York statute and the Model Penal Code is the designation by the Legislature of "extreme emotional disturbance" as an "affirmative defense", thus placing the burden of proof on this issue upon defendant. (Penal Law, § 25.00, subd. 2; People v. Patterson, 39 N.Y.2d 288, 301, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra.) The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.

        27

        The "extreme emotional disturbance" defense is an outgrowth of the "heat of passion" doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder. (See 1829 Rev.Stat. of New York, Part IV, ch. I, tit. II, §§ 10, 12, 18; L.1881, ch. 676, § 189, subd. 2; § 193, subd. 2; Penal Law of 1909, § 1052, subd. 2.) However, the new formulation is significantly broader in scope than the "heat of passion" doctrine which it replaced. (People v. Patterson, 39 N.Y.2d 288, 302-303, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra; People v. Shelton, 88 Misc.2d 136, 141-142, 385 N.Y.S.2d 708; Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp. 1C-61-62; Model Penal Code, § 201.3, Comment, pp. 46-47 (Tent Draft No. 9).)

        28

        For example, the "heat of passion" doctrine required that a defendant's action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. (See, e. g., People v. Ferraro, 161 N.Y. 365, 375, 55 N.E. 931.) Moreover, such reaction had to be immediate. The existence of a "cooling off" period completely negated any mitigating effect which the provocation might otherwise have had. (See, e. g., People v. Fiorentino, 197 N.Y. 560, 563, 91 N.E. 195.) In Patterson, however, this court recognized that "(a)n action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore." (39 N.Y.2d, at p. 303, 383 N.Y.S.2d at p. 582, 347 N.E.2d, at p. 908.) This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.

        29

        The thrust of defendant's claim, however, concerns a question arising out of another perceived distinction between "heat of passion" and "extreme emotional disturbance" which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant's emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his "explanation or excuse" should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.

        30

        In Patterson, this court was concerned with the question of whether the defendant [404 N.E.2d 774] could properly be charged with the burden of proving the affirmative defense of "extreme emotional disturbance". In deciding that the defendant could constitutionally be required to carry such a burden, we noted that "(t) he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them." (39 N.Y.2d, at p. 302, 383 N.Y.S.2d, at p. 582, 347 N.E.2d, at p. 907.) We also noted that "(t)he differences between the present New York statute and its predecessor * * * can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminished by mental trauma." (Id., at p. 303, 383 N.Y.S.2d, at p. 908, 347 N.E.2d, at p. 582.) These comments, however, were relevant to our decision only insofar as they demonstrated that the affirmative defense of "extreme emotional disturbance" is a mitigating factor which the defendant must prove as opposed to a substantive element of the crime of murder which the People must prove.

        31

        Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute "extreme emotional disturbance" if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that "extreme emotional disturbance" as contemplated by the statute is a lesser form of mental infirmity than insanity, [1] the court did not hold that all mental infirmities not arising to the level of insanity constitute "extreme emotional disturbance" within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant's attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant's emotional disturbance must be tested from the subjective viewpoint of defendant is completely unavailing, for that case had nothing whatever to do with this issue.

        32

        Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.

        33

        Section 125.25 (subd. 1, par. (a)) of the Penal Law states it is an affirmative defense to the crime of murder that "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results. (Compare People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra, with People v. Lyttle, 95 Misc.2d 879, 884, 408 N.Y.S.2d 578.) Moreover, although several States have enacted identical or substantially [404 N.E.2d 775] similar statutes (see Conn.Gen.Stat.Ann., § 53a-54, subd. (a), par. (1); Del.Code Ann., tit. 11, § 641; Hawaii Penal Code, § 707-702, subd. (2); Ky.Rev.Stat., § 507.020, subd. (1), par. (a); Rev.Codes of Mont., § 94-5-103; N.D. Century Code, § 12.1-16-02; Ore.Rev.Stat., § 163.115; Utah Code Ann., § 76-5-205), only one decision of the highest court of any of our sister States which has addressed this question has been called to our attention (State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979)) and that court expressly followed Justice Bentley Kassal's well-reasoned opinion in People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra.

        34

        Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. (Model Penal Code, § 201.3, Comment (Tent Draft No. 9 (1959)).) The defense of "extreme emotional disturbance" has two principal components (1) the particular defendant must have "acted under the influence of extreme emotional disturbance", and (2) there must have been "a reasonable explanation or excuse" for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be". The first requirement is wholly subjective i. e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.

        35

        The second component is more difficult to describe i. e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough" (id., at pp. 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation" (id.). "The ultimate test, however, is objective; there must be 'reasonable' explanation or excuse for the actor's disturbance" (id., at p. 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree. [2] We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can." (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)

        36

        By suggesting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion" doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to [404 N.E.2d 776] seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered."

        37

        We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words." (Cardozo, Law and Literature, pp. 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words" which Mr. Justice Cardozo abhorred.

        38

        We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance", a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant's "situation" and "the circumstances as defendant believed them to be", but concluded that the murder in this case was the result of defendant's malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding. Indeed, to do so would subvert the purpose of the statute.

        39

        In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified. Since the trier of fact found that defendant failed to establish that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse", defendant's conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree.

        40

        Defendant also urges in support of reversal that the confessions upon which his conviction was predicated were involuntarily given to the police. However, the trial court examined the " 'totality of the circumstances' " of defendant's arrest and subsequent confession (see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318) and found, as a factual matter, that defendant's oral and written statements were given to the police voluntarily. The Appellate Division affirmed this finding. Having carefully examined the record, we find nothing in the circumstances of this case which would lead us to conclude that [404 N.E.2d 777] defendant's confession was involuntarily obtained as a matter of law.

        41

        Finally, defendant contends that his mother's unsuccessful effort to contact him, aggravated in part by an apparently accidental dissemination of misinformation by the police, [3] denied defendant his right to counsel. While it is true that when an attorney attempts to intercede in a criminal defendant's behalf and is prevented from doing so by police misinformation, that defendant's right to counsel is infringed (see, e. g., People v. Garofolo, 46 N.Y.2d 592, 600-601, 415 N.Y.S.2d 810, 389 N.E.2d 123), no such infringement is present where, as here, a family member contacts police to report that her son was a "missing person". Nor is there any evidence in the record to suggest that this is a case such as People v. Bevilacqua, 45 N.Y.2d 508, 410 N.Y.S.2d 549, 382 N.E.2d 1326, where the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession. It is clear from the record that the defendant, a man of 27 years, consciously chose to confront his interrogators alone. Indeed, it is undisputed that defendant, after being informed of his constitutional rights, did not ever ask to speak with either counsel or any member of his family. Under these circumstances, we cannot say that defendant's right to counsel has been infringed.

        42

        We have examined defendant's remaining contentions and find them to be without merit.

        43

        Accordingly, the order of the Appellate Division should be affirmed.

        44

        COOKE, C. J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

        45

        Order affirmed.

        46

        ---------------

        47

        [1] Defendant also notes that the People's expert witness stated that a mental disease not arising to the level of insanity could not be considered to be "extreme emotional disturbance" within the meaning of the statute. Of course, to the extent that the witness' comments can be interpreted as being in conflict with our decision in Patterson, the witness is in error. However, the trial court did not fully adopt this view and, in fact, predicated its decision upon a finding that the emotional disturbance which defendant experienced had no reasonable explanation or excuse. We would note that the trial court could have completely disregarded the witness' testimony and still have denied the defendant the benefit of the defense. (People v. Solari, 43 A.D.2d 610, 612, 349 N.Y.S.2d 31, affd. 35 N.Y.2d 876, 363 N.Y.S.2d 953, 323 N.E.2d 191.)

        48

        [2] We emphasize that this test is to be applied to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse.

        49

        [3] We are informed that the Nassau County police have instituted a system for monitoring the whereabouts of all people in their custody, which should help to avoid the possibility that such misinformation will be given out in the future.

        50

         

  • 3 III.C. Unintentional Homicide

    • 3.1 III.C.i. Involuntary Manslaughter and Similar Offences

      The intentional homicides we just studied required us to differentiate between what were clearly blameworthy acts. Unintentional homicide poses a different problem: how to distinguish between criminal deaths and noncriminal deaths, when the perpetrator did not act with purpose to kill or with knowledge that his conduct would result in killing.

      When is a death deemed the result of someone’s criminal negligence or recklessness, and when is it a horrible accident that does not result in criminal liability? Some of the cases in this section present unsavory and unsympathetic protagonists; you may be able to empathize with others. Consider what the courts in each case think the defendants did wrong, and what legal tests they use to make those determinations.

      • 3.1.1 Montgomery v. State

        1

        IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

        JERI DAWN MONTGOMERY, Appellant v.
        THE STATE OF TEXAS 

        NO. PD-1169-11 

         

        JOHNSON, J., delivered the opinion for a unanimous Court

        Appellant caused a three-car collision, during which a passenger in one of the other vehicles was killed. The grand jury indicted appellant for criminally negligent homicide, alleging that she had made an unsafe lane change and had failed to keep a proper lookout. A petit jury found appellant guilty and also found that appellant’s vehicle was a deadly weapon. The jury assessed punishment of ten years’ confinement in the Texas Department of Criminal Justice, probated for ten years, and a $10,000 fine. On appeal, the Fourteenth Court of Appeals found the evidence insufficient to sustain the conviction and rendered a judgment of acquittal.[1] This Court granted the four grounds raised in the state’s petition for discretionary review.

        1. The court of appeals erred in holding that “cell phone usage while operating a vehicle” does not constitute morally blameworthy conduct and does not justify criminal sanctions.

        2. The court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act.

        3. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was traveling less than 39 miles per hour and was 92 feet past the interstate highway entrance ramp at the time that she attempted to cross in front of other vehicles to enter the freeway.

        4. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was admittedly distracted by talking on a cell phone at the time that she attempted to cross in front of other vehicles to enter the interstate highway ramp, which she had already missed by 92 feet.

        After review, we find that the evidence was legally sufficient to sustain appellant’s conviction for criminally negligent homicide, and we reverse the judgment of the court of appeals.

        Facts

        At approximately 8:30 p.m. on March 24, 2008, appellant was driving her mid-size SUV in the center lane of the three-lane service road adjacent to Interstate Highway 45 (IH-45) and talking on her cell phone. After hanging up the phone, appellant realized that she had missed the entrance ramp to IH- 45, which diverged from the left lane of the service road. Appellant abruptly swerved into the left lane to try to get onto the ramp, even though the beginning of the solid-white-lined area on the pavement between the ramp and the service road, often known as the “safety barrier,” was behind her. There was disagreement at trial between the state’s and appellant’s experts as to how far past the entrance ramp appellant was when she changed lanes, but they agreed that it was after the safety barrier began. The state’s expert testified that it was 92 feet past the entrance to the ramp; appellant’s expert estimated a lesser distance.

        As appellant moved abruptly into the left lane, she cut off Cochise Willis, who was driving his three-quarter-ton pickup truck in the left lane of the service road. Willis testified that he was driving at the speed limit–50 miles per hour–and that appellant was driving more slowly than Willis when she moved into the left lane ahead of him. Willis tried to slow down and get into the center lane, but he could not avoid hitting the rear of appellant’s SUV, slightly to the right of its center. At the time of impact, appellant’s vehicle was almost entirely in the left lane, and Willis’s truck was over the dividing line between the left and center lanes. The collision caused appellant’s vehicle to rotate in a counterclockwise direction, crossing over the safety barrier and onto the entrance ramp itself. The front of appellant’s SUV struck the passenger side of Terrell Housley’s pickup truck, which had just been driven onto the entrance ramp. Chance Wilcox was a passenger in the truck. After the collision, Housley’s truck rotated clockwise, causing it to hit the curb that separates the entrance ramp and the safety barrier and flip over, coming to a stop upside down. As Housley’s truck flipped, Wilcox was ejected, and he died at the scene from trauma to his head and neck. At the same time, the collision with Housley’s truck caused appellant’s SUV to flip onto its left side and skid to a stop. Willis never lost control of his truck. He pulled into the emergency lane of the service road and stopped.

        The Court of Appeals’s Opinion

        The court of appeals found that the evidence was insufficient to establish the requisite mens rea of criminal negligence, noting that 

        the State presented evidence of appellant’s use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas Law: making an unsafe lane change. However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant’s negligence: cell phone usage. . . . [B]y continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas.[2]

        Focusing on the prosecution’s presentation of cell-phone use as a primary factor establishing appellant’s criminally negligent behavior, the court of appeals found that the state introduced no competent evidence that cell-phone use while driving increases the risk of fatal accidents and held that, without evidence that such a risk was generally known and disapproved of in the community, no reasonable fact finder could find that using a cell phone while driving turned a simple moving violation into criminally negligent homicide. Thus, the state had failed to establish that appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from the standard of ordinary care.

        The state argues that, had the court of appeals used the correct standard of review and viewed the evidence in the light most favorable to the verdict, the court would have concluded that the evidence was legally sufficient to sustain the conviction. The state contends that the court of appeals relied on two incorrect theories of law: (1) cell-phone use while driving does not constitute morally blameworthy conduct and therefore does not justify criminal sanctions; and (2) the negligent act in a criminally negligent homicide must itself be an illegal act. The state contends that the court of appeals required evidence of an increased risk of fatal crashes from cell-phone use, but such a risk is generally known and disapproved of in the community; the dangers of driving while talking on a cell phone have been well known for years and has even been criminalized in certain situations by the Texas Legislature. And even though appellant violated at least one traffic law when she made an unsafe lane change into the left lane, it is not the law in Texas that the negligent act must be illegal.

        Sufficiency of the Evidence

        The state’s third and fourth grounds for review challenge the court of appeals’s sufficiency review of the evidence. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”[3] The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.[4] The duty of the reviewing court is simply to ensure that the evidence presented supports the jury’s verdict[5] and that the state has presented a legally sufficient case of the offense charged.[6] When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.[7] 

        To make a legally sufficient showing of criminally negligent homicide, the state must prove that (1) appellant’s conduct caused the death of an individual; (2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) appellant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person wouldhaveexercisedunderlikecircumstances.[8] The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.[9] Criminal negligence does not require proof of appellant’s subjective awareness of the risk of harm, but rather appellant’s awareness of the attendant circumstances leading to such a risk.[10] The key to criminal negligence is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.[11]

        Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence.[12] The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong.[13] The risk must be “substantial and unjustifiable,” the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards.[14] “With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard of care exercised by ordinary people.” Williams v. State, 235 S.W.3d 742, 750-51 (Tex. Crim. App. 2007). The degree of deviation from reasonable care “is measured solely by the degree of negligence, not any element of actual awareness.”[15] In finding a defendant criminally negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment.[16]

        After reviewing the record, we conclude that the state has met its burden of proving all of the elements of criminally negligent homicide. Appellant made an abrupt lane change in front of Willis’s truck, causing that truck to strike the rear of appellant’s SUV, and then causing her SUV to strike Housley’s truck, from which Wilcox was ejected and died. The state has thus shown that appellant, by making an unsafe lane change, caused the death of Wilcox.

        The state has also proved that appellant ought to have been aware of the substantial and unjustifiable risk created by her conduct. The court of appeals, focusing on her cell-phone use, found that the state had not proved that appellant ought to be aware of the risk present because the state did not present evidence that cell-phone use while driving poses a risk to others. However, the indictment made no mention of use of a cell phone. Rather, the indictment alleged that appellant caused Wilcox’s death by making an unsafe lane change and failing to maintain a proper lookout when she made that lane change. Nor did the jury charge mention appellant’s use of a cell phone. The jury charge read,

        Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of March, 2008, in Harris County, Texas, the defendant, Jeri Dawn Montgomery, did then and there unlawfully, cause the death of Chance Wilcox, by criminal negligence, namely, while operating a motor vehicle, making an unsafe lane change and failing to keep a proper lookout, causing the defendant’s vehicle to collide with a motor vehicle occupied by Chance Wilcox, then you will find the defendant guilty of criminally negligent homicide, as charged by the indictment.[17]

        Through the testimony of its witnesses and experts, and by cross-examination of appellant’s witnesses and experts, the state presented evidence that: appellant was driving her SUV on the access road of IH-45; the speed limit was 50 miles per hour; appellant was driving more slowly than surrounding traffic; appellant was up to 92 feet past the beginning of the entrance ramp onto IH- 45 when she abruptly changed lanes; appellant did not signal the lane change or look for other vehicles approaching in the left lane; and appellant intended to enter IH-45 via the entrance ramp that she had already passed. The state also presented evidence that, just before the accident, appellant was driving and talking on her cell phone and that appellant admitted using the cell phone had distracted her. As Justice Hudson pointed out in his dissent in the court of appeals, the state had no burden to show that driving while using a cell phone is always risky or dangerous, or that it, of itself, creates a substantial and unjustifiable risk, only that appellant’s use of a cell phone in this case created a substantial and unjustifiable risk because it interfered with her ability to maintain a proper lookout for other vehicles.[18] 

        Given these circumstances, we find that a jury could have reasonably concluded that appellant ought to have been aware of the substantial and unjustifiable risk created by her actions. Appellant was driving at speeds high enough to be lethal, should a collision occur. It is common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for upcoming traffic poses a great risk to other drivers on that road and that anyone sharing the general community’s sense of right and wrong would be aware of the seriousness of doing so.

        Finally, we hold that the jury could have reasonably found that appellant’s failure to appreciate the substantial and unjustifiable risk, given the circumstances known to her at that time, was a gross deviation from a standard of care that an ordinary person would exercise under the same circumstances. The state presented evidence that appellant had missed the entrance ramp for the highway because she was distracted by talking on her cell phone. Further evidence indicated that, although appellant knew that she had missed the entrance ramp, she still attempted to move to the left lane, cut across the “safety barrier,” and get onto the entrance ramp. Both the state’s and appellant’s accident reconstruction experts testified that appellant made an unsafe or “aggressive” lane change into the left lane and that Willis could not have avoided hitting appellant’s vehicle. Willis testified that appellant was driving more slowly than surrounding traffic and did not signal or use her brakes before she changed lanes. From the evidence presented, the jury could have found that appellant failed to perceive the substantial and unjustifiable risk created by her conduct.

        Appellant argues that her conduct was not a gross deviation from the ordinary standard of care and that she was subjected to criminal liability for a common traffic accident with fatal results. The court of appeals, again focusing on the lack of evidence presented regarding the dangers of talking on a cell phone while driving, found that the use of a cell phone while driving was such common practice that it would be difficult for a rational fact finder to find it to be a gross deviation from the ordinary standard of care.

        The court of appeals mistakes what conduct was alleged to constitute the gross deviation in this case. The gross deviation from the ordinary standard of care argued by the state in this case was not appellant’s use of a cell phone, but rather that appellant made an unsafe lane change and failed to maintain a proper lookout, at least partly as a result of the distraction created by her use of the cell phone. The state was not required to present evidence of the dangers of using a cell phone while driving in order to carry its burden of proof, but such a use of a cell phone may be considered as a factor in determining whether a defendant grossly deviated from the ordinary standard of care. The question of whether appellant’s conduct was a “gross deviation” is a question to be answered by the fact finder and here, a rational jury could conclude that it was. We sustain the state’s third and fourth grounds for review.

        Cell Phone Use

        In its first ground, the state argues that the court of appeals erred in holding that cell-phone use while driving does not constitute morally blameworthy conduct and does not justify criminal sanctions. The morally blameworthiness of cell-phone use while driving, by itself, is not the issue in this case, and we will therefore not address it. It is within the purview of the legislature, not the courts, to determine what does and does not justify criminal sanctions.[19] We dismiss the state’s first ground for review.

        Illegality of the Underlying Act

        In its second ground, the state contends that the court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act. We do not read the court of appeals’s opinion to presume that the underlying act must itself be illegal. In footnote 10, the court of appeals listed a number of clearly legal-yet-distracting activities that, under the proper circumstances, may cause negligent driving.[20] By including such a list, the court of appeals clearly did not presume that the negligent act must violate Texas law. Instead, in considering whether a finding of a gross deviation from the standard of care was supported by the record, the court of appeals mistakenly focused on the absence in the record of any fact witnesses or scientific studies showing that cell-phone use while driving increases the risk of fatal accidents. We overrule the state’s second ground for review.

        Conclusion

        We hold that the evidence was legally sufficient to support the jury’s verdict of guilty of criminally negligent homicide. We vacate the judgment of the court of appeals and remand the cause to the court of appeals so that it may address appellant’s remaining points of error.

        Delivered: June 20, 2012 Publish 

         

         

        [1] Montgomery v. State, 346 S.W.3d 747 (Tex. App.—Houston [14th Dist.] June 2, 2011, pet. granted). 

        [2] Id. at 752-753. 

        [3] Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

        [4] Id. at 899.

        [5] Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

        [6] Id. at 753-754.

        [7] Brooks, 323 S.W.3d at 900 n.13 (citing Jackson, 443 U.S. at 326). 

        [8] See Tello v. State, 180 S.W.3d 150, 156 (Tex. Crim. App. 2005); see also Graham v. State, 657 S.W.2d 99, 101(Tex. Crim. App. 1983).

        [9] Tello, 180 S.W.3d at 150 (Tex. Crim. App. 2005); Graham, 657 S.W.2d at 101.

        [10] Tello, at 159 (Cochran, J., concurring).

        [11] Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).

        [12] Tello, at 158-159 (Cochran, J., concurring).

        [13] Id. at 158. 

        [14] Id.

        [15] Tello, at 158.

        [16] See id. 

        [17] I C.R. at 327.

        [18] Montgomery, 346 S.W.3d at 756 (Hudson, J., dissenting)(emphasis added). 

        [19] In 2005, the legislature first enacted a law that governed use of cell phones; that law prohibited persons under the age of 18 years of age from driving while using a cell phone. See Act of June 17, 2005, 79th Leg., R.S., ch. 357, § 5, 2005 Tex. Sess. Law Serv. Ch. 357 (codified at TEX. TRANSP. CODE § 545.425). In 2009, the Legislature amended sections of the Transportation Code to state that, in very limited circumstances, criminal sanctions are appropriate for the use of a cell phone by persons of any age while driving. See TEX. TRANSP. CODE §§ 545.424-425 (2009). These circumstances are not present in this case, and, even if they were, the applicable amendments became effective eighteen months after this incident.

        [20] Montgomery, 346 S.W .3d at 753 n.10. 

         

         

         

      • 3.1.2 Noakes v. Commonwealth

        1
        ELIZABETH POLLARD NOAKES,
        v.
        COMMONWEALTH OF VIRGINIA.
        11

        Record No. 0295-08-2.

        12

        Court of Appeals of Virginia, Richmond.

        13
        January 13, 2009.
        14

         

        15

        James T. Maloney (Maloney & David, P.L.C., on brief), for appellant.

        16

        Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

        17

        Present: Judges Kelsey, Beales and Retired Judge Clements[*].

        18
        MEMORANDUM OPINION[**]
        19

         

        20

        JUDGE RANDOLPH A. BEALES.

        21

        Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. For the reasons stated below, we reject appellant's argument and affirm her conviction.

        22
        I. BACKGROUND
        23

         

        24

        On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom. A review of the videotape recorded hours after Noah's death reveals his crib was more analogous to a portable, "pack and play" variety than to a traditional wooden crib. The surface of the Graco crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of the bedroom, at the intersection of the back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.

        25

        Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.

        26

        In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and place a thirty-three-pound, folded-up dog crate on top of the cardboard. The cardboard and fabric would cover the entire top of the crib, and the dog crate would cover half the width of the crib. Appellant would place the dog crate so that it covered the front side of the crib, where Noah usually stood.

        27

        Before leaving the dog crate there with Noah inside, appellant removed Noah from the crib, placed the crate on the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall in the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the cardboard, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the adjoining loft bedroom to monitor the situation and see if Noah was distressed.

        28

        Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side's wall, so that Noah could not look out of the crib. Appellant then assumed Noah went to asleep. She left the room at approximately 1:00 p.m.

        29

        Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She left without checking on Noah.

        30

        A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.

        31

        Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.

        32

        The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."

        33

        At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.

        34
        II. ANALYSIS
        35

         

        36

        When considering the sufficiency of the evidence on appeal, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.

        37

        While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:

        38
        [T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).
        39

         

        40

        West v. Director, Dep't of Corrs., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).

        41

        Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.

        42

        First, although "`the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,'" Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871, 875 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations `"only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ,'" Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875). Therefore, only in the event that reasonable minds would be compelled to agree that appellant's actions were not criminally culpable could we, as an appellate court, find the evidence of appellant's criminal negligence insufficient.

        43

        Second, in determining whether reckless conduct amounts to unlawful conduct sustaining a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was unlawful in its inception — that is, an inherently unlawful act — or was a lawful act that then actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va. at 571, 311 S.E.2d at 784. As in Gooden, "[t]he present case is of the second category; conduct not inherently unlawful, but done without requisite caution, in an unlawful manner." Id. To prove a defendant's criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151 S.E. 168, 169 (1930)).

        44
        "The word `gross' means `aggravated or increased negligence' while the word `culpable' means `deserving of blame or censure.' Bell [v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. `"Gross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature,[1] showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.' Id. at 611-12, 195 S.E. at 681."
        45

         

        46

        Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).

        47

        On brief, appellant recognizes that there is support for a finding that she was grossly negligent, insofar as her act of placing the dog crate on Noah's crib "constituted a disregard of prudence" and would "shock[] the fair minded." See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (stating gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of another and "must be such a degree of negligence as would shock fair minded men although something less than willful recklessness"). However, she contends that she went to sufficient lengths to anticipate potential risks resulting from her "unconventional method" and to prevent those risks from becoming harmful. For instance, appellant noted that she shook the crate (after initially placing it on the crib while it was empty), to test the crate's tendency to fall from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to safeguard Noah against injury to his head if he tried to stand; and she created an "overhang" with the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant claims that such precautions demonstrate that she did not act with a callous disregard for the risks of death or serious injury that were likely to materialize. Therefore, appellant argues, while she may have been grossly negligent in her care of Noah, she was not criminally negligent.

        48

        We disagree with appellant's contention that her recognition of some risks inherent in placing a thirty-three-pound dog crate on a crib militates against a finding of criminal negligence. "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission." Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would be harmed by appellant's placement of the dog crate atop his crib. This danger came in numerous forms, and appellant was aware of, or should have been aware of, far less dangerous alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in order to convince him to lie down and take a nap. Cf. Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc) (holding that criminal negligence is judged under an objective standard). Notably, appellant testified at trial that she considered using only the cardboard or a net-like dome instead of the dog crate, but rejected those options because they would not have prevented Noah from standing up. So, appellant instead placed the dog crate on Noah's crib, despite her recognition — implicit in the precautions that she took — that this act could be dangerous. The trial court could reasonably have concluded that appellant recklessly disregarded Noah's safety by proceeding with her plan to prevent Noah from standing up by placing the dog crate on his crib.

        49

        Appellant contends that, because Noah's death resulted from a different risk of harm than she had foreseen, Noah's death was improbable; therefore, she claims that she was not criminally liable for his death. This contention is meritless. "It is not necessary that [appellant] foresaw the specific manner in which injury and death occurred." Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992). Instead, "[i]t is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions." Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant could have foreseen the harm that could and did befall Noah from putting a thirty-three-pound collapsed dog crate on top of his crib.

        50

        This is not a case where the defendant's mere inadvertence or inattentiveness created harm or the potential for harm. See, e.g., Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513 S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives of her children). Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah's death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side.[2] See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at 325-26 (holding that criminal negligence "may be found to exist where the offender either knew or should have known the probable results of his acts"); Tubman, 3 Va. App. at 274, 348 S.E.2d at 875 (requiring the Commonwealth to prove that "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender").

        51

        In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she should have been especially concerned about how the child would attempt to move the items over his crib when he attempted — as young children do — to get around the constraints placed on him. "The same discernment and foresight that older people and experienced persons habitually employ in discovering dangers cannot be reasonably expected of children of tender years, and therefore the greater precaution should be taken where children are exposed to such dangers." Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While appellant's "test" of the dog crate on the empty crib suggested to her that the crate would stay in place sufficiently enough not to fall in the crib, appellant was very aware that Noah was determined to stand in his crib. It was not at all improbable that a determined child of tender years would be able to get under the sides of this make-shift contraption, move the dog crate, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. ("That course of conduct which would be ordinary care when applied to persons of mature judgment and discretion might be gross, and even criminal, negligence toward children of tender years.").

        52

        Appellant's inattentiveness to the danger in which she placed Noah reinforces our holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By appellant's own admission, she did not go in the bedroom where Noah was to check on him for approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the other child in the bedroom at 3:30 p.m., she did not even look in Noah's direction.[3] Appellant assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m. until she found him unconscious and trapped between the crib and the cardboard/dog crate covering shortly after 4:00 p.m. The medical examiner indicated that Noah's death from asphyxiation typically would have taken "minutes and not hours." Leaving Noah unattended for even a half-hour, given the danger in which appellant placed Noah by setting a thirty-three-pound dog crate on top of his crib, was an unjustifiable risk.

        53

        In summary, the act of attempting to limit Noah's ability to stand in his crib was not inherently unlawful; rather, a reasonable factfinder could determine that the placing of a thirty-three-pound dog crate on Noah's crib, combined with appellant's inattentiveness in the face of this experimental and dangerous set-up and with Noah's conceded determination to stand up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah's safety. See Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the improper performance of lawful acts). Because reasonable minds could make a determination here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.

        54
        III. CONCLUSION
        55

         

        56

        For the foregoing reasons, we affirm appellant's conviction.

        57

        Affirmed.

        58

        Clements, J., dissenting.

        59

        For the reasons that follow, I conclude that the evidence presented at trial was insufficient to prove the criminal negligence necessary to support an involuntary manslaughter conviction. Hence, I respectfully dissent from the majority's opinion.

        60

        "When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). "We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it." Id. (citing Code § 8.01-680).

        61
        Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act. The "improper" performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner "so gross, wanton, and culpable as to show a reckless disregard of human life."
        62

         

        63

        Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984) (citations omitted) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). Thus, to sustain appellant's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that appellant's improper performance of the lawful act that proximately caused the accidental death of the child amounted to criminal negligence. Criminal negligence "`is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984)). "We judge criminal negligence by an objective standard. It occurs when `the offender either knew or should have known the probable results of his acts.'" Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003) (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc)).

        64

        In this case, appellant was admittedly negligent in placing the cloth-covered cardboard and folded 33-pound dog crate over the child's crib to prevent him from standing up during nap time. However, I find no evidence in the record to support a finding that appellant's lawful act was performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.

        65

        For one thing, nothing in the record indicates that the act itself and the manner in which it was performed were motivated by anything other than appellant's concern for the child. As appellant had discussed with the child's mother, the child had not been napping well in the three weeks appellant had been caring for him. Rather than sleep in the afternoon, the child would stand in the crib by the front railing and cry for his mother or appellant. Appellant knew from her experience that, if she could get the child to sit or lie down in the crib, the child would go to sleep. Concerned that the child was not getting enough sleep, appellant tried various "traditional means" to get the child to nap, but had no success. After "exhaust[ing] those means" and "brainstorming" for several days to come up with new ideas, appellant decided to cover the crib with something "heavy enough and large enough" to prevent the child from standing up. On the day in question, appellant determined that the crate "would work because it [was] heavy enough and large enough."

        66

        In placing the cardboard and dog crate over the crib, appellant took every step she could think of to ensure they would not harm the child. She initially tested them on the crib without the child in it to satisfy herself that they would not fall into the crib, even shaking the crib to make sure the covering was stable. She made sure the cardboard covered the entire top of the crib so the child could not hurt his head or fingers on the dog crate. She made sure the crate extended far enough over both sides of the crate so that "there would be no way that the crate could fall in given the overhang." She positioned the cardboard so that it extended beyond the crib where the child normally stood up and was folded over one side of the crib next to the wall to stabilize it. Additionally, when she placed the crate on the crib, appellant made sure it was positioned over the spot where the child normally stood by the front railing to prevent the child from being able to lift the cardboard at that spot. After putting the child in the covered crib shortly after 12:00 p.m., appellant stayed for a while in the child's room, which was a loft off her bedroom, to monitor the child and make sure he was not in any distress beneath the cardboard and crate. The child, who was playing with a ball in his crib, did not cry or try to stand up during that time. Around 1:00 p.m., appellant returned to the child's room and covered the front of the crib with a toy to help him go to sleep. The child was not standing at the time.

        67

        Several times throughout the afternoon, appellant returned to her bedroom to audibly monitor the child. Hearing no noise from the child, appellant assumed he was asleep. Around 3:30 p.m., appellant returned to the child's room for an unrelated purpose. Not seeing the child and assuming he was still asleep,[4] appellant went back downstairs. Approximately a half an hour later, appellant returned to the room to wake the child and discovered him standing in the crib with his neck wedged in between the cardboard and the front railing of the crib. Appellant immediately removed the child from the crib, called 911, and tried to revive him.

        68

        Throughout these events, appellant expressed a genuine concern only for the child's well being. No evidence suggests her actions were born of frustration, inconvenience, or any other selfish motivation.

        69

        Likewise, nothing in the record indicates that appellant was aware or reasonably should have been aware that her conduct would probably cause injury to the child. Not only did she take steps to prevent every possible danger that reasonably occurred to her, the Commonwealth presented no evidence to show she knew or reasonably should have known that the fifteen-month-old child possessed sufficient strength and ability to lift the cardboard under the 33-pound dog crate to the side so that he could stand up with his head between the cardboard and the front of the crib. To the contrary, the record shows that appellant specifically used the dog crate because she believed it was "heavy enough and large enough" to prevent the child from moving it and the cardboard beneath it. Indeed, appellant was initially unsure that she would even "be[] able to lift the crate." Nothing in the record demonstrates that appellant's belief that the weight of the crate would make it physically impossible for the child to lift the cardboard at the front of the crib was unreasonable.

        70

        Accordingly, I find the evidence insufficient to prove that appellant's improper performance of the lawful act amounted to criminal negligence. Thus, I would reverse appellant's conviction for involuntary manslaughter and dismiss the charge.

        71

        [*] Judge Clements participated in the hearing and decision of this case prior to the effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to Code § 17.1-400(D).

        72

        [**] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

        73

        [1] "Willful" conduct "must be knowing or intentional, rather than accidental, and be done without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose." Duncan, 267 Va. at 384, 593 S.E.2d at 214. "Wanton" conduct is "[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others" such as to be "merciless" and "inhumane." Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.

        74

        [2] We reject appellant's related argument that Noah's ability to lift a dog crate thirty percent heavier than his own weight was an improbable feat constituting an intervening cause for his death, thus rendering appellant's placement of the dog crate on top of his crib something other than the probable cause of his death. However, Noah's lifting the dog crate, if this is how he became wedged between the crate and the crib, "was put into operation by [appellant's] negligent act[]" of placing the dog crate on top of Noah's crib. See O'Connell v. Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah's actions were not an intervening cause.

        75

        [3] She argued at trial and contends on appeal that, because she turned off an air conditioner situated close to the crib when she entered the room at 3:30, Noah was within her peripheral vision and she would have noticed anything amiss. However, even if appellant could see Noah's crib in her peripheral vision, it does not necessarily follow that she would have noticed anything amiss. The back side of Noah's crib was against a wall, and a large toy that appellant herself placed there covered the front side of the crib. The short sides were obscured by a wall and another crib in close proximity to Noah's crib. Furthermore, cardboard and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah's crib peripherally, numerous impediments — many of her own making — blocked appellant's view of Noah and any efforts that he might have made to circumvent the dog crate that hindered his ability to stand up in the crib.

        76

        [4] Although, as the Commonwealth points out, appellant told the police she did not directly look at or check on the child during that trip to the child's room, it is clear from the record that, had the child been standing in the crib, appellant would have seen him.

      • 3.1.3 Commonwealth v. Welansky

        1

        316 Mass. 383

        2
        COMMONWEALTH
        3
        vs.
        4
        BARNETT WELANSKY
        5
        (and a companion case against the same defendant).
        6

        June 5, 1944

        7

        Supreme Judicial Court of Massachusetts, Suffolk

        8

         

        9

        Present: FIELD, C.J., LUMMUS, QUA, DOLAN, RONAN, & SPALDING, JJ. 

        10

        At the trial of an indictment charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, the mere fact, that the defendant had been absent from the premises for twelve days preceding a fire where deaths occurred owing to a failure to furnish proper exits in the event of a fire, did not require a verdict of not guilty where there was evidence that he was solely responsible for the "system" at the club before his absence, that there had been no change in conditions at the club during his absence, and that he "knew . . . the same system . . . [he] had would continue" during his absence.

        11

        A count in an indictment which followed the form for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79, properly might be used in a case of involuntary manslaughter.

        12

        No error appeared in the denial of motions to quash indictments charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a [384] night club, to which he invited the general public, safe for their use, as a result of which deaths occurred on the occasion of a fire, where the indictment, read with specifications by the Commonwealth giving details of such failure, apprised the defendant of the crime charged sufficiently to comply with art. 12 of the Declaration of Rights and fairness to him.

        13

        Wanton or reckless conduct as the basis of conviction under an indictment for manslaughter against one in control of premises to which he has invited the public as business visitors may consist of intentional failure to care for their safety in disregard of their right to such care or in disregard of probable harmful consequences to them of such failure.

        14

        The use of the word "wilful," prefacing the words "wanton" and "reckless," blurs the concept of wanton or reckless conduct. Per LUMMUS, J.

        15

        Discussion by LUMMUS, J., of wanton or reckless conduct.

        16

        At common law in this Commonwealth, conduct resulting in death does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wantonor reckless conduct. Per LUMMUS, J.

        17

        One, who by his wanton or reckless conduct causes injury to another which results in his death, may be found guilty of manslaughter.

        18

        To establish guilt under an indictment charging one in control of a night club with manslaughter of patrons whose lives were lost when a fire occurred on the premises and they were unable to escape because of insufficiency of the exits, the Commonwealth was not required to prove that the defendant caused the fire by wanton or reckless conduct, but only that the deaths resulted from his wanton or reckless disregard of the safety of his patrons in the event of fire from any cause.

        19

        No error appeared in ordering a view by the jury trying an indictment for manslaughter resulting from a destructive fire in a night club although over three months had passed since the fire, or in admitting in evidence photographs of the premises taken after the fire, where it appeared that material changes from conditions before the fire could have been shown by evidence.

        20

        At the trial of an indictment for manslaughter for deaths occurring through a fire in a night club owned by a corporation, the admission of evidence, offered in chief by the Commonwealth, that the defendant was in complete control of the corporation and the premises, including testimony that he gave orders to the corporation's clerk to make and attest records and returns of imaginary meetings and votes, disclosed no error where the matter of control was a live issue in the case until the defendant admitted complete control while testifying in his own behalf.

        21

        One who was in complete control of a corporation might properly be indicted and convicted of manslaughter resulting from wanton or reckless conduct on his part although the corporation also might have been indicted and convicted therefor.

        22

        Evidence, at the trial of an indictment for manslaughter against one in control of the construction and maintenance of a night club, that the defendant deliberately failed to instal fire doors called for on plans of [385] the premises approved by the municipal building department was properly admitted, with other evidence showing deliberate failure of the defendant to care for the safety of his patrons by providing proper exits in case of fire, as showing wanton or reckless conduct on his part causing the death of numerous patrons through a fire occurring in the club.

        23

        The admission of evidence of defective wiring as part of the evidence introduced in chief by the Commonwealth at the trial of an indictment against one in control of a night club for manslaughter resulting from a fire on the premises, was proper at the time of its admission and disclosed no error although the Commonwealth subsequently failed to introduce any evidence that the defendant knew or had reason to know of such defect or that it had any causal relation to the fire.

        24

        The indictments were tried before Hurley, J., on March 16 to April 10, 1943, inclusive. After conviction the defendant appealed, filing one hundred twenty-four assignments of error. Among such assignments were the following:

        25

        106. The refusal to give the following instruction requested by the defendant: "The fact that the fire started in the New Cocoanut Grove, Inc. is not evidence that it was started by the defendant, nor is any criminal liability for the fire attached to the defendant solely because he was an officer of the corporation."

        26

        108. The refusal to give the following instruction requested by the defendant: "If the death or deaths of the persons named resulted from the fire, and the fire was started by someone other than the defendant and not because of the defendant's acts or failure to act, then he must be found not guilty."

        27

        111. The refusal to give the following instruction requested by the defendant: "If the jury finds that the acts or omissions of the defendant, even though wanton and reckless on his part, were not the cause of the fire, and the fire caused the deaths . . . the defendant must be found not guilty."

        28

        105. The denial and refusal to grant the motion of the defendant that the court direct the jury to return a verdict of not guilty as to each count submitted to them.

        29

        [386] 109. The refusal to give the following instruction requested by the defendant: "If the jury finds that the deceased . . . were unable to make their way to any door or window, or any exit, by reason of being overcome by fire, flame, heat, smoke or gases, it cannot be found that the defect, if any, of egresses was the proximate cause of the deaths."

        30

        114. The refusal to give the following instruction requested by the defendant: "Unless you find on all the evidence that any reasonable man would have foreseen or anticipated that the fire in New Cocoanut Grove would be started and act as you find it acted, the defendant cannot be convicted of causing the deaths."

        31

        122. An instruction to the jury in the charge that they could consider, and should so do, the state of mind of the defendant, not at the time the calamity occurred, on November 28, 1942, "but for any period of time prior thereto in determining whether or not . . . [his] conduct indicated an utter indifference to the rights of parties as if those rights did not exist."

        32

        The cases were argued at the bar in February, 1944, before Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., were submitted on briefs to Qua & Spalding, JJ.

        33

        D. J. Gallagher, (H. F. Callahan, E. M. Dangel, T. N. Creed, & A. C. Webber with him,) for the defendant.

        34

        F. T. Doyle, Assistant District Attorney, (J. K. Collins & A. H. Salisbury, Assistant Attorneys General, with him,) for the Commonwealth.

        35

         

        36

        LUMMUS, J.

        37

        On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, [387] since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.

        38

        The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he "knew it would be all right" and that "the same system . . . [he] had would continue" during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant's duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478.

        39

        The physical arrangement of the night club on November 28, 1942, as well as on November 16, 1942, when the defendant [388] last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.

        40

        The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one half feet wide. That alley led to a yard, from which egress could be had through in-swinging doors into another passageway and thence to Shawmut Street.

        41

        If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its [389] equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.

        42

        It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.

        43

        Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.

        44

        From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new Cocktail Lounge, which was first opened on November 17, 1942, and which had an area of seven hundred eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.

        45

        That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides those doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.

        46

        (1) A door, opening outward to Piedmont Street, two [390] and one half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked "Exit" by an electric sign. It was equipped with a "panic" or "crash" bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.

        47

        (2) A door two and one third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described. From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door. The door to Piedmont Street could not be opened fully, because of a wall shelf. And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.

        48

        (3) A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked "Exit" by an electric sign. The opening was about three and two thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with "panic" bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, [391] 1942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the "panic" doors were hidden from the view of diners by a pair of "Venetian" wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the "panic" doors. In addition, dining tables were regularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.

        49

        (4) The service door, two and one half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street. This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see. This door was known to employees, but doubtless not to patrons. It was kept locked by direction of the defendant, and the key was kept in a desk in the office.

        50

        (5) The door, two and three fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street. No patron was likely to know of this door. It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.

        51

        We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was "very crowded." Beverley v. Boston Elevated Railway, 194 Mass. 450 , 457. Witnesses were rightly permitted to give theirestimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred [392] to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.

        52

        A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.

        53

        The door at the head of the Melody Lounge stairway [393] was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

        54
        I. The pleadings, verdicts, and judgments.
        55

         

        56

        The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as "Jane Doe," "John Doe," or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273 , 278, 279. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of "proper means of egress properly maintained" and "sufficient proper" exits, and overcrowding. Some other specifications -- such as failure to prevent the unlawful employment of minors -- plainly had little or no relation [394] to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what "provisions of" the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.

        57

        The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12 inclusive as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did "wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said" victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.

        58

        Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did "maintain, [395] manage, operate and supervise certain premises," describing them, "and solicited and invited the patronage of the public to the said premises"; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did "assault and beat" the said victim, and by said assault and beating did kill him "by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises." Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.

        59

        Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15 inclusive. Counts 7 to 14 inclusive were substantially like counts 7 to 14 inclusive in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted "on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and by such assault and beating, did kill the said Eleanor Chiampa." That count followed the form of an indictment for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128 . Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.

        60

        The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be "fully, plainly, substantially and formally set out," as required by art. 12 of the Declaration of Rights. G. L. (Ter. Ed.) c. 277, Section 40. Commonwealth v. Snell, 189 Mass. 12 , 18, 19. Commonwealth v. Sinclair, 195 Mass. 100 , [396] 105-108. Commonwealth v. Massad, 242 Mass. 532 . Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379 , 384. Commonwealth v. Bartolini, 299 Mass. 503 , 509. Commonwealth v. Hayes, 311 Mass. 21 . The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567 , 571. Commonwealth v. Lammi, 310 Mass. 159 . For constitutional purposes "all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged." Commonwealth v. Hayes, 311 Mass. 21 , 25. Commonwealth v. Gedzium, 259 Mass. 453 , 457. Commonwealth v. Albert, 307 Mass. 239 , 243. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35 , 38, 39.

        61

        The defendant was found guilty upon counts 7 to 16 inclusive of indictment 413 and upon counts 7 to 15 inclusive of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor (G. L. [Ter. Ed.] c. 279, Section 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied. G. L. (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 50, Section 3. The cases come here under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.

        62
        II. The principles governing liability.
        63

         

        64

        The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary [397] manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct. [1]

        65

        Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls, [2] wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. Queen v. Senior, [1899] 1 Q. B. 283. State v. Benton, 38 Del. 1. Am. Law Inst. Restatement: Torts, Section 500. 26 Am. Jur. Homicide, Sections 205-208. 29 C. J. 1154, et seq.

        66

        To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Banks v. Braman, 188 Mass. 367 , 370. Commonwealth v. Arone, 265 Mass. 128 , 132. Sometimes the word "wilful" is prefaced to the words "wanton" and "reckless" in expressing the concept. That only blurs it. Wilful means intentional. In the phrase "wilful, wanton or reckless conduct," if "wilful" modifies "conduct" it introduces [398] something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If "wilful" modifies "wanton or reckless conduct" its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588 , 592. Banks v. Braman, 188 Mass. 367 , 369. The words "wanton" and "reckless" are practically synonymous in this connection, although the word "wanton" may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word "reckless." But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.

        67

        The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165 . Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367 , 369. Romana v. Boston Elevated Railway, 218 Mass. 76 , 83. Commonwealth v. Peach, 239 Mass. 575 . Nash v. United States, 229 U.S. 373, 377. Arizona Employer's Liability Cases, 250 U.S. 400, 432. Am. Law Inst. Restatement: Torts, Section 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311 . The judge charged the jury correctly when he said, "To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal [399] man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful."

        68

        The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am. Law Inst. Restatement: Torts, Section 500. LeSaint v. Weston, 301 Mass. 136 , 138. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other (Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271; Freeman v. United Fruit Co. 223 Mass. 300 , 302; Banks v. Braman, 188 Mass. 367 , 369; Yancey v. Boston Elevated Railway, 205 Mass. 162 , 171; Burns's Case, 218 Mass. 8 , 10; Romana v. Boston Elevated Railway, 218 Mass. 76 , 83; Sullivan v. Napolitano, 277 Mass. 341 , 344) or the rights of that other. Warren v. Pazolt, 203 Mass. 328 , 347. Commonwealth v. Horsfall, 213 Mass. 232 , 235. Cohen v. Davies, 305 Mass. 152 , 155, 156. But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92 , 96, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequences of flagrant wrongdoing.

        69

        The words "wanton" and "reckless" are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367 . Cotter, petitioner, 237 Mass. 68 , 72. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244 , 246. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 , 242; S. C. 241 Mass. 100 , 102. McIntyre v. Converse, [400] 238 Mass. 592 , 594. Young v. Worcester, 253 Mass. 481 , 484. Potter v. Gilmore, 282 Mass. 49 , 57. Am. Law Inst. Restatement: Torts, Section 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 ; S. C. 241 Mass. 100 . Compare Jamison v. Encarnacion, 281 U.S. 635; Alpha Steamship Corp. v. Cain, 281 U.S. 642. In pleadings as well as in statutes the rule is that "negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other." Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 447. Romana v. Boston Elevated Railway, 226 Mass. 532 , 536.

        70

        Notwithstanding language used commonly in earlier cases, and occasionally in later ones, [3] it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as "criminal negligence." Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. [401] Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .

        71

        Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. McIntyre v. Converse, 238 Mass. 592 , 594. Sullivan v. Napolitano, 277 Mass. 341 . Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 387. Baines v. Collins, 310 Mass. 523 , 526. Am. Law Inst. Restatement: Torts, Section 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. Commonwealth v. Hawkins, 157 Mass. 551 . Commonwealth v. Gorman, 288 Mass. 294 , 299. Commonwealth v. McCan, 277 Mass. 199 , 203. State v. Schutte, 87 N. J. L. 15, affirmed 88 N. J. L. 396. Brimhall v. State, 31 Ariz. 522; 53 Am. L. R. 231. Woodward v. State, 164 Miss. 468. Davis v. Commonwealth, 150 Va. 611. And since manslaughter is simply a battery that causes death (Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5; Commonwealth v. Velleco, 272 Mass. 94 , 99), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415 , 417. Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 , 553. Commonwealth v. Parsons, 195 Mass. 560 , 569. Commonwealth v. Peach, 239 Mass. 575 . Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .

        72

        To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

        73
        III. The alleged errors at the trial.
        74

         

        75

        1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and [402] should not have admitted photographs taken after the fire. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.

        76

        2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478. Commonwealth v. Beal, 314 Mass. 210 , 222. Braga v. Braga, 314 Mass. 666 , 672. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case "closely," as the phrase is, with respect to a point that later he had to admit.

        77

        3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the [403] corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.

        78

        4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St. 1907, c. 550, Section 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exit might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not negligence per se, but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483 . Kelly v. Hathaway Bakeries, Inc. 312 Mass. 297 , 299. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177 . Carroll v. Hemenway, 315 Mass. 45 , 46-47. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver's Case, 260 Mass. 222 , 224. Commonwealth v. Arone, 265 Mass. 128 , 131. Carroll v. Hemenway, 315 Mass. 45 . People v. Lynn, 385 Ill. 165. Am. Law Inst. Restatement: Torts, Section 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551 , 553, 554. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 390.

        79

        5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the lights to go out, did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the [404] electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.

        80

        6. Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.

        81

        Judgments affirmed.

        82

        FOOTNOTES

        83

        [1] In the only comparable case known in this Commonwealth, the jury were similarly instructed. That was the case of Commonwealth v. Hendrick, & others, tried in the Superior Court in Suffolk County in August, 1925, a case of alleged manslaughter arising out of the collapse of a night club building called the Pickwick Club, which happened on July 4, 1925. A copy of the charge is in the Social Law Library. The case did not come to this court. The following cases involved manslaughter arising out of the collapse of a building. People v. Buddensieck, 103 N. Y. 487. State v. Ireland, 126 N. J. L. 444. The following cases involved manslaughter arising out of a fire. Commonwealth v. Rhoads, 20 Penn. Dist. R. 149. See also Miller v. Strahl, 239 U.S. 426.

        84

        [2] Compare the case of an employer who at common law owes no duty to his employees to make his factory safer than it appeared to be when the employment began, because they contractually assumed the risk. Jones v. Granite Mills, 126 Mass. 84 . Keith v. Granite Mills, 126 Mass. 90 . Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90. Huda v. American Glucose Co. 154 N. Y. 474. In those cases recovery by a servant against his master for injury caused by fire in a factory was denied. See also Wainwright v. Jackson, 291 Mass. 100 ; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 . In Cloutier v. Oakland Park Amusement Co. 129 Maine, 454, the court failed to distinguish between such cases and the case of an invited business visitor.

        85

        [3] In early cases what is now known as wanton or reckless conduct was variously described as wilful negligence, wanton negligence, gross negligence, and culpable negligence, as was pointed out in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130 , 134, and Banks v. Braman, 188 Mass. 367 , 370. So in criminal cases what was necessary to make conduct criminal was often so described. The expression "criminal negligence" was often used. But it seems that what we now know as wanton or reckless conduct was in fact required. The terminology, not the law, is what has changed. Commonwealth v. Hartwell, 128 Mass. 415 . Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 . Lanci v. Boston Elevated Railway, 197 Mass. 32 , 35. Romana v. Boston Elevated Railway, 218 Mass. 76 , 84. Commonwealth v. McCan, 277 Mass. 199 , 203. At least one statute purports to impose criminal liability for "gross negligence." G. L. (Ter. Ed.) c. 265, Section 30. Whether that expression really means wanton or reckless conduct has not been decided.

        86

        In other jurisdictions a variety of similar expressions has been used in describing conduct that will create criminal liability. But in many of them the substantial equivalent of wanton or reckless conduct is required. People v. Angelo, 246 N. Y. 451. Regina v. Elliott, 16 Cox C. C. 710. People v. Burgard, 377 Ill. 322. People v. Lynn, 385 Ill. 165. State v. Cope, 204 N. C. 28. State v. Studebaker, 334 Mo. 471. State v. Sawyers, 336 Mo. 644. Bell v. Commonwealth, 170 Va. 597. State v. Whatley, 210 Wis. 157; 99 Am. L. R. 749. 29 C. J. 1154, et seq.

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