§ 31.05 Murder: "Depraved Heart" ("Extreme Recklessness") Murder

§ 31.05 Murder: "Depraved Heart" ("Extreme Recklessness") Murder⁸²

[A] In General

[1] Terminology

Malice aforethought is implied if a person's conduct manifests an extreme indifference to the value of human life. In states that separate murder into degrees, this type of murder usually constitutes second-degree murder.⁸³

At common law, this state of mind is often described colorfully—or, as one court put it, "more visceral[ly] than intellectual[ly]"⁸⁴—as conduct demonstrating a "depraved heart,"⁸⁵ "an abandoned heart,"⁸⁶ "an abandoned and malignant heart,"⁸⁷ or (to change bodily organs) "a depravity of mind."⁸⁸ Some courts have characterized this form of malice in terms of both the heart and the mind: "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty."⁸⁹ For current purposes, it will be described as "depraved heart" murder, probably the most common label attached to this form of common law murder.

The meaning of this common law concept—or, at least, examples of it—is discussed below. Although some scholars and courts find "depraved heart" a useful description,⁹⁰ others do not.⁹¹ Those that attempt to provide a more precise and modern meaning to the concept often describe a depraved-heart murder as a "reckless" or, more often, "extremely reckless" homicide. The addition of the adverb "extremely" is useful because court opinions antedating the Model Penal Code frequently used the word "recklessness" as a synonym for what today we would call "criminal negligence," which is the mental state commonly said to be required for a form of involuntary manslaughter summarized in Section 31.08 below. If "recklessness" (understood as "criminal negligence") is required for manslaughter, it follows that "extreme recklessness" is the form of risk-taking that constitutes murder.

[2] Facts Supporting a Finding of "Depraved Heart" Murder

With depraved-heart murder, the accused does not intend to kill her victim, but malice is implied because the defendant's conduct is "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another."⁹² A depraved-heart killer evinces a "don't give a damn attitude, in total disregard of the public safety."⁹³

Cases falling within this category of murder "are not stereotyped";⁹⁴ each case is determined on the basis of the specific circumstances of the homicide. However, it is sometimes said that a depraved heart homicide involves risk-taking serious enough that "it might be fairly said that the actor 'as good as' intended to kill his victim and displayed . . . unwillingness to prefer the life of another person to his own objectives."⁹⁵ Thus, under this view, a depraved-heart homicide is one in which the actor's conduct manifested extreme recklessness, i.e., risk-taking that evinces an extreme indifference to the value of one or more human lives.⁹⁶

For example, a jury may find implied malice if a person, without intending to kill or seriously injure another: (1) intentionally shoots a firearm into an occupied room, killing a person;⁹⁷ (2)...